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ELRCDismissedNakuru Cause (Petition) - ruling on Petitioner's motion dated 8 August 2016; related to Nairobi Cause filed 9 August 2016· [2016] KEELRC 344 (KLR)

Purity Mwonjoria Kamuruci v Nyandarua County Assembly Service Board [2016] KEELRC 344 (KLR)

Employment and Labour Relations Court
25 November 2016
941 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that reinstatement cannot be granted as an interim order unless exceptional circumstances are proven on the papers.

What this practically means

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Executive summary

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The Petitioner was offered and confirmed in the position of Clerk, County Assembly of Nyandarua in 2014. After being sent on compulsory leave in April 2016 (which she challenged in Nakuru Cause No. 19 of 2016 without success on interim relief), she was issued a show cause notice in May 2016. Following a disciplinary hearing on 25 July 2016, she was dismissed by letter dated 1 August 2016. She moved the Court in Nairobi on 9 August 2016, when Abuodha J granted an interim order staying the dismissal; the file was later transferred to Nakuru as the court with territorial jurisdiction. At an inter partes stage the Court considered her motion dated 8 August 2016 seeking an interim order of stay of the dismissal and a conservatory order restraining the Respondent from recruiting or appointing anyone to the Clerk's position pending the Petition. The Court held that confirming the stay on the papers would amount to reinstating the Petitioner without a hearing on the merits. Reinstatement is a final remedy; an interlocutory order to that effect requires exceptional circumstances or removal procedures protected by a specific statute, and no specific statutory provision governs removal of a County Assembly Clerk, only laws of general application such as the Employment Act, 2007 and the Constitution. The motion was accordingly dismissed with costs in the cause.

Key legal issues

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01

Whether an interlocutory stay of dismissal amounting to reinstatement can be granted or confirmed on the papers

Holding

It cannot, absent exceptional circumstances or specific statutory protections; reinstatement is a final remedy reserved for a hearing on the merits

Reasoning

The Court reasoned that confirming the stay would effectively reinstate the Petitioner to office without a hearing on the merits. While exceptional circumstances can justify an interlocutory order with the effect of reinstatement, none were demonstrated. Further, there is no specific statute prescribing removal procedures for a Clerk of a County Assembly, so only laws of general application (Employment Act, Constitution) apply, which the Court held insufficient to underpin an interlocutory reinstatement.

p. 3
02

Whether the Respondent should be restrained from filling the office of Clerk pending trial

Holding

No restraint was warranted as it would impede the smooth operations of the County Assembly

Reasoning

Having declined to confirm the stay, the Court found that restraining the Respondent from appointing or procuring any person, even on an interim basis, to act as Clerk would create impediments to the smooth operations of the County Assembly. The interim relief sought in prayer 3 was therefore also refused and the entire motion dismissed with costs in the cause.

p. 3

Legal principles established

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  • Reinstatement in employment law is a final remedy granted after a hearing on the merits, not on the papers at an interlocutory stage.
  • An interlocutory order amounting to reinstatement may only be granted where exceptional circumstances are shown or where the removal is underpinned by specific statutory provisions.

Court orders

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  1. 1.The Petitioner's motion (dated 8 August 2016) seeking confirmation of the interim order of stay of dismissal and interim conservatory orders was dismissed
  2. 2.Costs were ordered to be in the cause

Authorities

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Legislation

  • Employment Act2007 (general application)
  • Constitution of Kenyanot specified
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment dispute; matter transferred to Nakuru as the Court with territorial jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Purity Mwonjoria Kamuruci v Nyandarua County Assembly Service Board [2016] KEELRC 344 (KLR)", Case Analysis (2016). Nakuru Cause (Petition) - ruling on Petitioner's motion dated 8 August 2016; related to Nairobi Cause filed 9 August 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/344/eng@2016-11-25

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