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ELRCDismissedPetition No. 121 of 2016 (formerly High Court Garissa Petition No. 6 of 2016)· [2016] KEELRC 20 (KLR)

Ahmed Aden Hire v Natif Jama & another [2016] KEELRC 20 (KLR)

Employment and Labour Relations Court
5 December 2016
3,233 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that a dismissed worker cannot get reinstated on an emergency basis without a full hearing, especially where sick-leave rules were ignored.

What this practically means

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Executive summary

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The Petitioner, formerly a County Executive Committee member for Environment, Energy, Natural Resources, Wildlife Management and Tourism in Garissa County, moved the Court by Notice of Motion seeking, among other prayers, a conservatory order restraining the Governor from terminating his services without compliance with section 41(2) of the Employment Act and Articles 47(2) and 236 of the Constitution. He alleged he was hospitalised at Nairobi South Hospital when he received a termination letter dated 25 July 2016 for absenteeism and failure to account for funds and respond to correspondence. The Respondents opposed, contending the Petitioner failed the Giella tests, that the substantive prayer was final in nature, and that they lawfully exercised statutory power under sections 31 and 40 of the County Governments Act after loss of confidence, the Petitioner having failed to account for Kshs.20 million. The Court noted the matter had been transferred from the High Court, Garissa, curing the jurisdictional defect, and that the interim orders earlier issued came from a court without jurisdiction. It held that Rule 17(10) of the ELRC (Procedure) Rules, 2016 bars ex parte reinstatement of a terminated employee; reinstatement is a final, specific-performance-type remedy available only after full hearing, save in exceptional circumstances such as automatically unfair grounds of termination. Applying section 30 of the Employment Act as explained in Dorothy Ndung'u, the Court found the Petitioner had neither notified his employer of his illness nor supplied the required medical certificate, and had not explained his absence prior to admission on 23 July 2016. The application was dismissed with no orders as to costs, the parties to be heard on the main petition.

Key legal issues

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01

Whether interim reinstatement of a terminated employee can be granted ex parte

Holding

No - reinstatement is a final, specific-performance-type order and Rule 17(10) of the ELRC Procedure Rules, 2016 prohibits ex parte reinstatement orders absent exceptional circumstances such as automatically unfair termination grounds

Reasoning

Section 12(3)(vii) of the ELRC Act empowers the Court to order reinstatement within three years of dismissal, but Rule 17(10) bars ex parte reinstatement. Reinstatement is akin to specific performance with finality; granting it in the interim would deny the employer a defence. Exceptional grounds such as discrimination under section 5(3)(a) of the Employment Act may justify it, but none were shown here.

p. 4
02

Whether the Petitioner's hospitalisation excused his absence and justified interim relief

Holding

No - the Petitioner failed to notify the employer of his illness or submit a medical certificate as required by section 30 of the Employment Act, so his absence risked summary dismissal under section 44(4)

Reasoning

Section 30 grants sick leave but conditions it on production of a certificate of incapacity and notification of the employer as soon as reasonably practicable, which a third party may do. The Petitioner was admitted on 23 July 2016 but had been absent for two weeks prior, gave no explanation for the intervening period, and the admission form was never sent to the employer; his wife could have notified the employer but did not.

Legal principles established

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  • The Court shall not grant an ex parte order reinstating an employee whose services have been terminated; reinstatement is a final remedy available only upon full hearing
  • Interim reinstatement may be granted only in rare cases where the termination is patently unfair, such as automatically unfair grounds like discrimination
  • An employee absent due to sickness must notify the employer and produce a certificate of incapacity to work as soon as reasonably practicable; the certificate is for the employer, not the court

Court orders

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  1. 1.The application by the Petitioner is dismissed at this stage
  2. 2.Parties shall be heard on the main petition
  3. 3.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2, 10, 20, 22, 27, 28, 41, 47(2), 50, 73, 165, 236; section 19 of the Sixth Schedule
  • County Governments Actsections 31 and 40
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure RulesRules 19, 23, 24 and 26
  • Employment and Labour Relations Court Actsection 12(3)(vii)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 17(10)
  • Employment Act, 2007sections 5(3)(a), 19, 30(1)-(3), 41(2), 44(4)

Cases cited (8)

  • Giella versus Cassman Brown & Co Ltd
    [1973] EA
  • Philgona Atieno Ooko versus Governor Siaya County & 4 others
    [2016] eKLR
  • CGA & Another versus Cecilia Wangechi
  • County Government of Nyeri & Another versus Cecilia Wangechi
    [2015] eKLR
  • Tom Luusa Munyasya & another versus Governor, Makueni County & Another
    [2014] eKLR
  • Alfred Nyungu Kimungui versus Bomas of Kenya
    {2013] eKLR
  • Dorothy Ndung'u versus Machakos University
    Cause No.1321 of 2016
  • Peris Nyambura Kimani versus Dalbit Petroleum Group
    Petition No.63 of 2014
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act (matter transferred from the High Court, Garissa)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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

Cite this brief

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Cite this brief

Caselaw, "Ahmed Aden Hire v Natif Jama & another [2016] KEELRC 20 (KLR)", Case Analysis (2016). Petition No. 121 of 2016 (formerly High Court Garissa Petition No. 6 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/20/eng@2016-12-05

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