Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in judgment· [2015] KEELRC 1411 (KLR)

Peter Mutisya Musembi & another v National Bank of Kenya Limited [2015] KEELRC 1411 (KLR)

Employment and Labour Relations Court
25 February 2015
ANAbuodha J. N.
3,041 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

A Kenyan employment court refused to freeze a bank's loan rate hike because money can compensate the ex-employee, though his unfair termination claim remains viable.

What this practically means

#

Executive summary

#
The claimant, a former employee of the respondent bank, applied by motion under certificate of urgency for an interlocutory injunction restraining the respondent from converting the preferential interest rates on his staff loan to market rates pending trial. He alleged his employment was unlawfully terminated on 30 April 2014 on grounds of poor performance, after he declined a voluntary early retirement offer, and that the termination triggered conversion of his loan's preferential interest rate. The respondent, through the affidavit of Dismas Omondi, maintained the termination followed a performance management policy with a right of appeal, and that preferential rates were staff privileges which ceased on termination, with the loan agreement expressly permitting reversion to commercial rates on 30 days' notice. Counsel cited Giella v Cassman Brown and allied authorities on interim injunctions. The Court found that although the respondent's affidavit was not sufficiently detailed on compliance with section 41(2) of the Employment Act (hearing the employee before termination for poor performance), establishing a prima facie case with probability of success, the claimant failed on the second Giella limb: his monetary reliefs and the fact that the loan was not invested in immovable property meant damages would adequately compensate him. The Court also ruled on jurisdiction, holding, adopting Australian accrued jurisdiction authority, that an employment court may adjudicate consequential contractual questions in 'mixed grill' cases. The application was dismissed with costs.

Key legal issues

#
01

Prima facie case with probability of success

Holding

Established on the material then before the Court

Reasoning

The respondent's replying affidavit was not sufficiently detailed on how it complied with section 41(2) of the Employment Act regarding hearing the employee before termination for poor performance. Nothing much was said about the process of termination, so the Court held the applicant demonstrated a prima facie case with probability of success, while cautioning against delving into the merits at interlocutory stage.

p. 4
02

Adequacy of damages

Holding

Damages would be an adequate remedy; injunction refused

Reasoning

The memorandum of claim sought monetary reliefs (12 months' salary, damages, notice pay, leave). The preferential loan of Kshs.520,000 was not invested in immovable property whose value is intrinsic and incapable of financial compensation. The claim therefore failed the second Giella v Cassman Brown condition and the interlocutory injunction could not issue.

p. 5
03

Jurisdiction over 'mixed grill' employment and contract claims

Holding

The Court may adjudicate consequential contractual questions in the same suit

Reasoning

Applying Australian authority on accrued jurisdiction (Dean Patty v Commonwealth Bank of Australia; Philip Morris Inc v Adam P. Brown Male Fashions Ltd), the Court held that once jurisdiction is attracted by the employment matter, it extends to the whole matter, including the loan interest dispute, and rejecting a split approach would increase cost and duplicity contrary to Article 159.

p. 5

Legal principles established

#
  • A court seized of an employment matter has jurisdiction to adjudicate consequential legal or factual questions, including those touching on contracts, arising in the same matter ('mixed grill' cases), relying on the doctrine of accrued jurisdiction
  • Under section 41(2) of the Employment Act an employer must hear and consider an employee's representations before terminating employment for misconduct or poor performance; failure to detail compliance may establish a prima facie case

Court orders

#
  1. 1.The application fails on merit and is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

#

Legislation

  • Employment Actsection 43(1)
  • Employment Actsection 45(2)
  • Employment Actsection 41(2)
  • Constitution of KenyaArticle 159

Cases cited (9)

  • Dorris Kanini Ndunda v. Family Bank Limited
    (2013) eKLR
  • Mbuthia v. Jimba Credit Corporation & Another
    (1988) KLR 1
  • Giella v. Cassman Brown
    (1973) E.A. 75
  • Mrao v. First American Bank of Kenya & 2 Others
    (2003) eKLR
  • Abraham Nyambane Asiago v. Barclays Bank of Kenya Ltd
    (2013) eKLR
  • Harilal & Company & Another v. The Standard Bank Limited
    (1967) EA 512
  • Kenya Commercial Finance Co. Ltd v. Afraha Education Society
    (2001) 1 EA 86
  • Dean Patty v. Commonwealth Bank of Australia
    (2000) FCA 1072
  • Philip Morris Inc v. Adam P. Brown Male Fashions Ltd
    (1981) 148 CLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes; Article 159 of the Constitution invoked on procedural technicalities

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Peter Mutisya Musembi & another v National Bank of Kenya Limited [2015] KEELRC 1411 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1411/eng@2015-02-25

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