Juliana Mutisya & 2 others v National Gender and Equality Commission [2015] KEELRC 1191 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Prima facie case for interlocutory injunction
The Applicants established a prima facie case because the Respondent breached its own Human Resource Manual disciplinary process
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.
Whether reinstatement can be ordered at the interlocutory stage
Yes - reinstatement is an available remedy under the Industrial Court Act 2011 and Employment Act 2007 and was granted as an exceptional circumstance
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.
Weight of authorities relied on by the Respondent against reinstatement
The cited authorities were distinguished or found non-binding
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.
Legal principles established
#- 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
#- 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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.