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ELRCPartially AllowedNot stated in extract (Cause before the Industrial Court, Nairobi)· [2015] KEELRC 1191 (KLR)

Juliana Mutisya & 2 others v National Gender and Equality Commission [2015] KEELRC 1191 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
4 February 2015
2,303 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 reinstated three sacked NGEC workers because the employer skipped its own disciplinary procedures, proving internal HR rules matter.

What this practically means

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Executive summary

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This was a ruling on the Claimants' Notice of Motion dated 15th October 2014 in the Industrial Court at Nairobi, in which three dismissed employees of the National Gender and Equality Commission sought an injunction restraining the Commission from interviewing or sourcing replacements for their positions, and a mandatory injunction compelling their reinstatement. The dismissals arose from a tendering process (NGEC/01/2013-14/INS) in which minutes were allegedly altered, with the Respondent alleging corrupt practices and unauthorised alteration of evaluation and tender committee records, and the Applicants denying dishonesty and alleging a flawed disciplinary process that contravened the Respondent's own Human Resource Manual. The court framed two issues: whether grounds existed for the injunction and whether reinstatement could issue. Applying the Giella v Cassman Brown test sequentially, the court found a prima facie case in the Respondent's failure to follow its own Human Resource Manual processes. On reinstatement, the court held that under the Industrial Court Act 2011 and Employment Act 2007 reinstatement is an available remedy, distinguishing Oguye, Kanaa, Oudia, MUHURI and the South African authority, and doubting Michimikuru as decided by a court without jurisdiction under Article 162. Finding exceptional circumstances in the Commission's staffing handicap, and holding that the Applicants were owed proper process, the court allowed the application in terms of prayers 3 and 4, reinstating the Claimants effective immediately while leaving the Respondent free to re-initiate lawful disciplinary processes under its manual.

Key legal issues

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01

Prima facie case for interlocutory injunction

Holding

The Applicants established a prima facie case because the Respondent breached its own Human Resource Manual disciplinary process

Reasoning

The court found from the affidavits that there was some reason for disciplinary processes but that the Respondent did not follow the procedures outlined in its own Human Resource Manual. At the interlocutory stage the court need not consider the merits of the action taken, only whether a prima facie case exists. This failure to follow internal process fits the prima facie limb of the Giella test.

p. 3
02

Whether reinstatement can be ordered at the interlocutory stage

Holding

Yes - reinstatement is an available remedy under the Industrial Court Act 2011 and Employment Act 2007 and was granted as an exceptional circumstance

Reasoning

The court held that cases like Oguye v KNTC and Michimikuru predate the Industrial Court Act 2011 and Employment Act 2007, and Michimikuru was decided by a court lacking jurisdiction under Article 162 and is neither binding nor persuasive. The Commission was seriously handicapped by staff shortages, an exceptional circumstance, and the Claimants were owed proper process before termination.

p. 4
03

Weight of authorities relied on by the Respondent against reinstatement

Holding

The cited authorities were distinguished or found non-binding

Reasoning

MUHURI v AG failed on its own threshold for mandatory injunction and prohibition; the South African case was decided after full hearing as a review of arbitration proceedings and is out of context; Michimikuru was decided by a court without jurisdiction under Article 162 of the Constitution and is not binding or even persuasive. Shollei v JSC on critical offices remaining vacant was distinguished because the NGEC is not comparable to the third arm of government.

p. 3

Legal principles established

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  • The three Giella v Cassman Brown tests for interlocutory injunction are to be applied sequentially; once one limb is satisfied there is no need to consider the other limbs
  • Reinstatement is a remedy that can be granted under the current dispensation of the Industrial Court Act 2011 and Employment Act 2007
  • Failure by an employer to follow its own Human Resource Manual disciplinary process establishes a prima facie case at the interlocutory stage

Court orders

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  1. 1.The Notice of Motion Application dated 15th October 2014 is allowed in terms of prayer 3 (restraint of the Respondent from interviewing or sourcing replacements for the Applicants' positions)
  2. 2.Prayer 4 granted: mandatory reinstatement of the Claimants to their positions effective immediately
Jurisdiction invoked
Industrial Court Act 2011 (employment and labour relations jurisdiction); Article 162 of the Constitution referenced regarding court jurisdiction

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, "Juliana Mutisya & 2 others v National Gender and Equality Commission [2015] KEELRC 1191 (KLR)", Case Analysis (2015). Not stated in extract (Cause before the Industrial Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1191/eng@2015-02-04

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