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ELRCDismissedNot stated in judgment· [2015] KEELRC 436 (KLR)

Churchill Winstones Ochieng v Guaranty Trust Bank (Kenya) Ltd & Attorney General [2015] KEELRC 436 (KLR)

Industrial Court (Employment and Labour Relations Court)
23 September 2015
NMNzioki wa Makau
1,868 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court refused to decide an employee's constitutional challenge early, ruling that final orders cannot be granted before a full hearing.

What this practically means

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Executive summary

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The Petitioner, an employee who had tendered three months' notice of resignation on 12th January 2015, moved the Industrial Court by Notice of Motion dated 20th February 2015 against his employer, the 1st Respondent. He sought an order of certiorari quashing the 1st Respondent's letter of 20th January 2015 terminating his services with immediate effect on grounds of alleged poor performance, a restraint against the 1st Respondent issuing opinions or reports about his conduct or capacity, and a declaration that Sections 42(1) and 47(6) of the Employment Act, which bar complaints of unfair termination during probation, are inconsistent with Articles 27, 41(1), 48 and 50(1) of the Constitution. The 1st Respondent opposed, arguing the application was defective and an abuse of process, that declaratory and constitutional reliefs could not be granted at interlocutory stage, that certiorari lies only against bodies exercising judicial or quasi-judicial functions, and that the orders would infringe its obligations under the Banking Act. The 2nd Respondent did not participate. The court, considering Section 12 of the Industrial Court Act, held that although the Court enjoys wide powers of relief, the orders sought were final in nature, resolving the whole dispute rather than interim issues, and so could not issue on an interlocutory application. The application was dismissed with costs to the 1st Respondent and the Petition was to be listed for hearing.

Key legal issues

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01

Whether final orders including certiorari and declarations of unconstitutionality can issue at interlocutory stage

Holding

No; the orders sought would finalise the dispute and were refused at the interlocutory stage

Reasoning

The court considered Section 12 of the Industrial Court Act, which grants wide reliefs including declaratory orders, but held that an interlocutory application is meant to resolve interim issues rather than the entire suit. Because the orders sought would resolve the dispute between the parties, they lacked the interim character required and the court declined to grant them, directing that the Petition proceed to full hearing.

p. 4

Legal principles established

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  • Interlocutory applications resolve interim issues, not the whole suit; final reliefs cannot be granted at the interlocutory stage

Court orders

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  1. 1.Dismissal of the Petitioner's Notice of Motion dated 20th February 2015 with costs to the 1st Respondent; parties urged to list the Petition for hearing

Authorities

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Legislation

  • Employment ActSections 42(1), 47(6), 41
  • Constitution of Kenya 2010Articles 27, 31(1)(b), 41(1), 48, 50(1), 162(2), 162(4)
  • Industrial Court ActSection 12
  • Banking ActSections 27 and 28

Cases cited (8)

  • Abraham Gumba v Kenya Medical Supplies Authority
    [2014] eKLR
  • Samuel G. Momanyi v Attorney General & Another
    [2012] eKLR
  • Republic v Kenya National Examinations Council ex parte Gathenji & Others
    Civil Appeal No. 266 of 1996
  • Giella v Cassman Brown
    [1975] EA 358
  • Mrao v First American Bank Limited and 2 others
    [2003] KLR 125
  • Matalinga and Others v Attorney General
    [1972] E.A. 518
  • Esther Geliza Kanyaga v Rose Nyaroka Ramichi and another
    [2011] eKLR
  • Trust Bank Limited v Amin Company Limited & Another
    [2000] KLR 164
Jurisdiction invoked
Article 162(2) and 162(4) of the Constitution and Section 12 of the Industrial Court Act 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Churchill Winstones Ochieng v Guaranty Trust Bank (Kenya) Ltd & Attorney General [2015] KEELRC 436 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/436/eng@2015-09-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.