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ELRCAllowedCause No 25 of 2015· [2015] KEELRC 1264 (KLR)

Stephen Chase Kisaka v Emirates Airline Limited [2015] KEELRC 1264 (KLR)

Employment and Labour Relations Court of Kenya
12 March 2015
1,989 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 blocked an employer from refilling a dismissed manager's job, ruling that deep pockets cannot excuse an unfair disciplinary process.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 14 January 2015 filed by the Claimant, Stephen Chase Kisaka, in an employment claim against his former employer, under Articles 23, 47 and 159 of the Constitution and Sections 49(3) and 50 of the Employment Act. The Applicant, formerly employed in Dubai as Flight Analysis Superintendent and transferred to Nairobi as Sales Manager in charge of Kenya and several other countries, was suspended in August 2014, subjected to a disciplinary hearing on 1 October 2014, and summarily dismissed on 27 October 2014 for gross negligence and failure to disclose conflicts of interest. He complained that the investigation report forming the basis of the accusations was withheld from him, and that the Country Manager, Anita Kongson, who raised the complaint, declined his request to recuse herself and sat on the disciplinary panel as 'an accuser, prosecutor and judge in her own cause'. The Respondent, in a replying affidavit sworn by the Country Manager, denied the allegations, asserting that the hearing was chaired by an HR representative, Emma Weeks, with the Claimant and his shop-floor representative present. Applying the Giella v Cassman Brown principles, as restated in Waithaka v ICDC and Suleiman v Amboseli Resort Ltd, the court found a prima facie case with probability of success, held that a moneyed respondent should not flout the law merely because it can pay damages, and found no demonstrated prejudice to the Respondent. The court allowed the application in terms of prayers 1 to 4, restraining the Respondent from filling the Sales Manager Kenya position pending determination of the claim, awarded costs, and directed a priority hearing date.

Key legal issues

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01

Whether the Applicant established a prima facie case with probability of success

Holding

The court found that on the face of the record the Applicant had a prima facie case with a probability of success, given his claim that the disciplinary process was flawed.

Reasoning

The Applicant alleged that the primary complainant, the Country Manager, declined to recuse herself from the disciplinary hearing, refused to avail the investigation report forming the substratum of the accusations, and thereafter dismissed him. The court accepted on the face of it that he was subjected to a disciplinary process and that his submissions disclosed a prima facie case with a probability of success, satisfying the first Giella principle.

p. 4
02

Whether damages would be an adequate remedy and where the balance of convenience lies

Holding

A wealthy respondent should not be allowed to flout the law merely because it can pay damages; the Respondent showed no prejudice from the order, so the balance favoured granting the injunction.

Reasoning

The Respondent argued the Claimant could be compensated in damages. The court, relying on Ringera J's holding in Waithaka v ICDC and Suleiman v Amboseli Resort Ltd, held that no party should ride roughshod over another's rights merely because it could pay damages. The Respondent also failed to demonstrate that granting the order would cause it any prejudice, so the balance of convenience favoured the Applicant whose reinstatement claim would be rendered nugatory if the position were filled.

p. 4

Legal principles established

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  • The fact that a respondent can compensate in damages should not bar injunctive relief where it would flout the law.
  • Interlocutory injunctions are governed by the Giella v Cassman Brown principles: prima facie case, irreparable injury, and balance of convenience.

Court orders

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  1. 1.The application dated 14/1/2015 is allowed in terms of prayers 1, 2, 3 and 4
  2. 2.Pending inter partes hearing and determination of the application, and pending hearing and determination of the Claim, the Respondent, its agents, servants and/or employees are restrained from advertising, recruiting and/or in any way filling up the position of Sales Manager Kenya
  3. 3.Costs of the application and the entire proceedings to the Claimant
  4. 4.The case may be set down for hearing and be given a priority hearing date

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 23, 47, 159
  • Employment Act, 2007 (Cap 226)Sections 49(3) and 50

Cases cited (3)

  • Giella vs Casman Brown
  • Waithaka vs Industrial and Commercial Development Corporation
    (2001) KLR 374
  • Suleiman vs Amboseli Resort Limited
    (2004) 2 KLR 589
Jurisdiction invoked
Articles 23, 47 and 159 of the Constitution, 2010; Sections 49(3) and 50 of the Employment Act, 2007

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, "Stephen Chase Kisaka v Emirates Airline Limited [2015] KEELRC 1264 (KLR)", Case Analysis (2015). Cause No 25 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1264/eng@2015-03-12

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