Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedCause No 1766 of 2016· [2016] KEELRC 16 (KLR)

Samuel Mwinami v Social Service League & another [2016] KEELRC 16 (KLR)

Employment and Labour Relations Court
8 December 2016
MMM. Mbaru
2,545 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

Nairobi Hospital failed to overturn interim orders protecting an employee facing redundancy, because preserving an existing job is not the same as reinstating one.

What this practically means

#

Executive summary

#
The respondent, by Notice of Motion dated 24th October 2016, sought to set aside ex parte interim orders issued on 31st August 2016, which directed parties to maintain the status quo and lifted a redundancy notice of 26th July 2016 terminating the claimant, a Physiotherapist Assistant, on grounds of redundancy. The respondent argued the orders contradicted themselves by maintaining the status quo while effectively reinstating the claimant, were issued ex parte contrary to Rule 16(8)(a), imposed involuntary employment contrary to Articles 30 and 41, and that the claimant could be adequately compensated in damages. The claimant countered that his employment was subsisting when the orders issued, that the redundancy was not justified, that section 40 of the Employment Act was not complied with, and that the termination targeted his union activities as shop steward. The Court held that the impugned orders did not constitute reinstatement since employment had not ceased; the redundancy notice was merely lifted and the status quo preserved. Procedural rules do not supersede the Court's substantive power under section 12 of the ELRC Act to issue interim orders. The Court applied Enock O Kinara and Kenya Plantation & Agricultural Workers Union to hold that a respondent should reply to a pending application rather than file a counter-application, which merely stalls the hearing. The respondent had also failed to file a reply within the time granted. The application dated 24th October 2016 was declined and the interim orders of 31st August 2016 remain in force pending compliance with the directions of 5th October 2016; the respondent was given 7 days to file written submissions and parties to be allocated a mention date. No express costs order was made.

Key legal issues

#
01

Whether the ex parte orders of 31st August 2016 should be set aside

Holding

The application to set aside is declined; the orders were granted on good grounds and remain in force

Reasoning

The Court found the impugned orders preserved an employment relationship that was still subsisting when they issued. They did not reinstate the claimant but lifted the redundancy notice and directed maintenance of the status quo, while simultaneously securing the respondent's right to be heard by giving an early hearing date. The respondent filed no reply within the time granted, and its counter-application served only to stall the hearing of the claimant's pending application. No grounds for discharge under Rule 17(7) were established.

p. 4
02

Whether the ex parte orders offended Rule 16(8)(a) prohibiting reinstatement of an employee at the interlocutory stage and amounted to servitude under Article 30

Holding

The orders did not constitute reinstatement; employment was still in existence and the status quo merely preserved

Reasoning

The Court held that since the redundancy notice had not yet taken effect when the orders issued, the employment was subsisting. Maintaining the status quo therefore was not a reinstatement into an abolished office. Further, procedural rules cannot override the Court's substantive power under section 12 of the ELRC Act to issue interim orders on the merits of each case. The servitude argument under Article 30 thus did not arise on the facts.

p. 3
03

Whether a respondent should pursue a counter-application instead of replying to a pending application

Holding

Filing a counter-application rather than a reply stalls the hearing and is of no useful legal purpose

Reasoning

Following the Kenya Plantation & Agricultural Workers Union decision, the Court held that the natural consequence of an inter partes interlocutory hearing is confirmation or vacation of ex parte orders. A respondent keen to have the claimant's application heard need only file a reply; a counter-application seeking to revisit the interim orders merely delays disposal of the claimant's application.

p. 4

Legal principles established

#
  • Ex parte injunctions may be varied or vacated where obtained by concealment of material facts
  • Rules of procedure do not supersede the substantive legislation empowering the Court to issue interim orders
  • A respondent should address a pending application rather than file a counter-application at the interlocutory stage

Court orders

#
  1. 1.The respondent's application dated 24th October 2016 is declined
  2. 2.The interim orders issued on 31st August 2016 shall remain in force pending the parties abiding by the directions of 5th October 2016
  3. 3.The respondent has 7 days to file written submissions
  4. 4.Parties shall be allocated a mention date at the registrar

Authorities

#

Legislation

  • Constitution of KenyaArticle 30
  • Constitution of KenyaArticle 41
  • Employment and Labour Relations Court Act (formerly Industrial Court Act)Section 12(3)(viii), 12, 16 and 20
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 16(8)(a) & (b), Rule 16(1)(g), Rule 32, Rule 17(7)
  • Employment ActSection 40, Section 43
  • Civil Procedure RulesOrder 40(7), Order 45, Rule 36

Cases cited (6)

  • Kenya Airways Limited versus Aviation & Allied Workers Union & 3 Others
    Civil Appeal No. 46 of 201[2]
  • Alfred Nyungu Kiungui versus Bomas of Kenya
    Cause No. 620 of 2013
  • Filista Chamaiyo Sosten versus Samson Mutai
    (2012) eKLR
  • Enock O Kinara versus Postal Corporation of Kenya
    Cause No. 2202 of 2016
  • Kenya Plantation & Agricultural Workers Union versus P. J. Dave Flowers ltd
    Cause No. 101 of 2015 (Nakuru)
  • Mobile Kitale Service Station versus Mobil Oil Kenya Limited & Another
    (2004) eKLR
Jurisdiction invoked
Articles 30 and 41 of the Constitution; sections 12(3)(viii), 16 and 20 of the Employment and Labour Relations Court Act; Rules 16 and 17(7) of the Employment and Labour Relations Court (Procedure) Rules, 2016; Order 45 and Rule 36 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Samuel Mwinami v Social Service League & another [2016] KEELRC 16 (KLR)", Case Analysis (2016). Cause No 1766 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/16/eng@2016-12-08

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