George Kiarie Kibochi v Resolution Insurance Company Limited [2016] KEELRC 52 (KLR)
The bottom line
#A Kenyan court refused emergency orders because the employee never produced the employment contract, but confirmed the employer's failure to follow dismissal procedures left the job relationship open.
What this practically means
#Executive summary
#Key legal issues
#Threshold for interlocutory orders in employment matters
The applicant must establish a right which has been infringed and that without a restraining order the substance of the right will be lost; the claimant failed as the employment contract was not produced
Relying on Esther Mbinya Musau v National Bank of Kenya Limited, the court set out the parameters for interlocutory relief: the applicant must show an existing infringed right. Here the pay slip showed commission-based earnings and deductions outside Part IV of the Employment Act, and neither party attached the employment contract, leaving the court without the critical document regulating the relationship and the rights flowing from it.
Whether the claimant's employment stood terminated for absconding
No valid termination occurred: the respondent produced no record of any process, no notice, no reasons and no termination letter, so the claimant remains an employee
The respondent alleged abscondment amounting to summary dismissal under sections 44(3) and (4) of the Employment Act, but section 42 requires hearing and considering representations before dismissal. Further, sections 35 and 43 require written notice and reasons for termination. No such steps were evidenced, so the employer left the relationship open, inviting claims such as this one.
Whether substantive issues can be resolved on an interlocutory application
No; matters of fact on termination and employment status must be established at the hearing of the main suit
The court declined to determine the underlying termination issue on the motion, holding that such factual findings would deny the court vital evidence needed for effective arbitration of the matter. The respondent had also submitted that orders replicated in the main suit cannot issue in the interim and that it is not the court's duty to redraw contracts. The court instead prioritised allocation of a hearing date.
Legal principles established
#- Even where an employer alleges serious misconduct warranting summary dismissal, the minimum procedure is to hear the employee and consider representations
- Termination must be communicated in writing with reasons; absent notice and reasons, the employment relationship remains open
Court orders
#- 1.The application filed on 3rd May 2016 is declined
- 2.A hearing date shall be allocated on priority basis; parties shall attend before the court Deputy Registrar, ELRC for allocation of a mutually agreed hearing date
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations matters (interlocutory reliefs pending hearing of the main suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Kiarie Kibochi v Resolution Insurance Company Limited [2016] KEELRC 52 (KLR)", Case Analysis (2016). Cause not stated on the face of the judgment (application filed 3rd May 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/52/eng@2016-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.