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ELRCDismissedNot stated in judgment· [2015] KEELRC 986 (KLR)

Brown Tsuma Mukanda v National Gender and Equality Commission [2015] KEELRC 986 (KLR)

Employment and Labour Relations Court
7 May 2015
800 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 block a dismissal by injunction, ruling that compensation could adequately remedy the termination.

What this practically means

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Executive summary

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The claimant, employed on 23rd November 2012 on a five-year contract and terminated on 6th October 2014, sought interlocutory injunctions restraining the respondent from processing his application for the post of procurement officer and from implementing the termination decision pending hearing of the main claim. He complained that he was dismissed shortly after a second warning letter without a third warning as required by the respondent's human resource manual, and that his appeal was heard by the same body that heard the notice to show cause. The respondent maintained that the termination was for altering tender records amounting to negligence, that due procedure under the NGEC Act was followed, and that the claimant was heard as required by section 41 of the Employment Act. The court, per Abuodha J., set out the principles for post-dismissal interlocutory injunctions, holding that compelling circumstances are required and that the applicant must show gross violation of the contract, the Employment Act and natural justice. Noting that the memorandum of claim sought quantifiable damages for breach of contract and violation of rights, and applying Hill v. Persons on trust and confidence and the adequacy of damages, the court found damages to be an adequate remedy. The application was dismissed with costs on 7th May 2015.

Key legal issues

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01

Whether a post-dismissal interlocutory injunction can issue restraining continuation of a termination decision

Holding

Injunctions post-dismissal require compelling circumstances showing gross violation of contract, the Employment Act or natural justice; not demonstrated here

Reasoning

The court held that although interlocutory injunctions are not barred simply because the employee was dismissed before filing suit, requiring such injunctions to rest on compelling circumstances prevents sharp employers from dismissing employees knowing they cannot be injuncted. The claimant's complaint centred on the absence of a third warning letter and the appeal being heard by the same body; he did not challenge the substantive reason for dismissal. Damages were therefore adequate.

p. 2
02

Adequacy of damages as a remedy in employment disputes

Holding

Damages for breach of contract and violation of rights were quantifiable and adequate, defeating the injunction

Reasoning

The court noted the memorandum of claim sought damages for breach of contract of employment and violation of rights and dignity, meaning damages could be quantified and awarded as compensation for termination. Following the traditional view (Hill v. Persons), the personal nature of employment makes compelling continuation awkward, and the court must be satisfied trust and confidence subsist and damages are inadequate.

p. 2

Legal principles established

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  • To issue an interlocutory injunction after dismissal requires compelling circumstances; the applicant must demonstrate gross violation of the employment contract, the Employment Act and rules of natural justice
  • An interlocutory injunction may still be granted even where damages would be adequate, if the balance of convenience favours granting it

Court orders

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  1. 1.The application is dismissed with costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the employment claim (Employment Act, section 41 invoked; NGEC Act referenced)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Brown Tsuma Mukanda v National Gender and Equality Commission [2015] KEELRC 986 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/986/eng@2015-05-07

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