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ELRCDismissedMotion dated 14 September 2016 (Cause, ELRC Nakuru)· [2016] KEELRC 341 (KLR)

Sarah Achieng Bondi v Music Copyright Society of Kenya [2016] KEELRC 341 (KLR)

Employment and Labour Relations Court

18 November 2016

RSRadido Stephen

726 words in judgment

View original judgment Read on Kenya Law Watch case

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The bottom line

A Kenyan court ruled that an employee cannot get her job back before trial—reinstatement must wait for a full hearing on the merits.

What this practically means

Executive summary

The Claimant, Sarah Achieng Bondi, moved the Court by a motion dated 14 September 2016 seeking, at the interlocutory stage, an interlocutory mandatory injunction compelling the Respondent to reinstate her salary benefits and entitlements accrued from 5 August 2016, when her employment was terminated, and an interim injunction restraining the Respondent from substantively filling the position of Regional Manager, Rift Valley, pending the hearing and determination of her claim. Other prayers were marked spent. The Respondent sought an adjournment when the motion came up for hearing on 10 October 2016; the Court declined, noting the motion had been served two weeks earlier. On the mandatory reinstatement prayer, the Court held that mandatory injunctions are granted only in exceptional circumstances and that reinstatement is generally a final remedy, save where employment is protected by specific statutory provisions. Since the Claimant's employment was regulated by contract and general employment law, the Court could not restore the employment relationship without a hearing on the merits, while preserving its power under section 49 of the Employment Act, 2007 to order reinstatement or re-engagement after trial. On the recruitment injunction, the Court balanced the risk of rendering reinstatement superfluous against the Respondent's interest in hiring suitably qualified personnel should the termination be upheld, and noted it could alternatively order re-engagement or compensation. Finding the prayers unmerited at the interlocutory stage, the Court dismissed the motion with costs in the Cause and directed an accelerated hearing on the merits.

Key legal issues

Whether reinstatement can be ordered by way of interlocutory mandatory injunction

Holding

No. Reinstatement is generally a final remedy and an order restoring the employment relationship cannot be granted without a hearing on the merits where employment is contractual rather than statutorily protected

Reasoning

The Court distinguished mandatory interlocutory relief from final remedies. Order 3 sought both a mandatory injunction and reinstatement, whose effect would restore the employment relationship determined on 5 August 2016. Because the relationship was governed by contract and general employment law, not specific protective statutes, the Court could not grant such an order before trial, while noting it retains power under section 49 of the Employment Act after a full hearing.

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Whether the Respondent should be restrained from substantively filling the claimant's former position pending trial

Holding

No. On balancing the rival interests, since the Court may order re-engagement or compensation as remedies, the parties should await the hearing of the Cause on a priority basis

Reasoning

The Court acknowledged the logic that a substantive replacement could render reinstatement or re-engagement superfluous. However, the converse interest of the employer — engaging a person with the right qualifications, skills and experience — weighed against interim restraint. Weighing the availability of alternative remedies (re-engagement on similar terms or compensation), the Court concluded the interim orders were not merited and prioritised an expedited trial instead.

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Legal principles established

Mandatory injunctions are granted only in very exceptional circumstances, and reinstatement in employment law is generally a final remedy reserved for the hearing on the merits unless employment is protected by specific statute
An interlocutory injunction to restrain a replacement recruitment must be weighed against the employer's interest in engaging a suitably qualified person should the termination be found fair

Court orders

1.The motion dated 14 September 2016 is dismissed with costs in the Cause
2.Directions to be given immediately for filing of necessary process with a view to achieving a hearing on an accelerated basis

Authorities

Legislation

Employment Act, 2007section 49

Jurisdiction invoked: Employment and Labour Relations Court jurisdiction over employment dispute; section 49 of the Employment Act, 2007 referenced as the source of reinstatement/re-engagement remedies

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Sarah Achieng Bondi v Music Copyright Society of Kenya [2016] KEELRC 341 (KLR)", Case Analysis (2016). Motion dated 14 September 2016 (Cause, ELRC Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/341/eng@2016-11-18

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