Stephen Chase Kisaka v Emirates Airline Limited [2015] KEELRC 1264 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Applicant established a prima facie case with probability of success
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.
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.
Whether damages would be an adequate remedy and where the balance of convenience lies
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.
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.
Legal principles established
#- 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
#- 1.The application dated 14/1/2015 is allowed in terms of prayers 1, 2, 3 and 4
- 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.Costs of the application and the entire proceedings to the Claimant
- 4.The case may be set down for hearing and be given a priority hearing date
- Jurisdiction invoked
- Articles 23, 47 and 159 of the Constitution, 2010; Sections 49(3) and 50 of the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.