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ELRCDismissedCause No 109 of 2015· [2016] KEELRC 386 (KLR)

Aggrey Lukorito Wasike v Kenya Power And Lighting Company Limited [2016] KEELRC 386 (KLR)

Employment and Labour Relations Court
23 September 2016
BOByram Ongaya
3,461 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court ruled that reinstatement orders take effect immediately, so employers cannot delay them by applying for a stay pending appeal.

What this practically means

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Executive summary

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The court had entered judgment for the claimant against the respondent on 13.05.2016 ordering reinstatement with full benefits, payment of withheld salaries and allowances, and costs. The respondent filed an application on 03.06.2016 under Order 42 Rules 6 and 7 of the Civil Procedure Rules seeking stay of execution of the judgment pending an intended appeal to the Court of Appeal, supported by the affidavit of its Chief Legal Officer, Jude Ochieng. The claimant opposed the application, contending the intended appeal had no chances of success, that nothing would be rendered nugatory, that reinstatement was the appropriate remedy, and that the application was brought in bad faith. On 29.07.2016 the court had marked as settled a contempt application after confirming the claimant had been reinstated, and directed the parties to negotiate a conditional stay. Negotiations failed. The court considered Order 42 Rule 6 and observed that, on ordinary criteria, the respondent had largely satisfied the requirements of substantial loss, security, and timely filing. However, the court held that an order of reinstatement takes effect immediately and is self-executory, subject only to terms imposed in the order itself, and is therefore not amenable to a stay of execution pending review or appeal. It set out six principles governing reinstatement orders, including the employer's continuing liability to pay salary even where the employee is not allowed to resume duty, and that salaries received need not be returned upon reversal on appeal. Guided by the dissenting opinion of Mwilu J.A. in Co-operative Bank v BIFU and its own decision in Patrick Njuguna Kariuki v Del Monte, the court found there was nothing to stay and dismissed the application with each party bearing its own costs.

Key legal issues

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01

Whether an order of reinstatement can be stayed pending appeal

Holding

An order of reinstatement is immediate and self-executory and is not amenable to stay of execution pending appeal or review; the six principles set out by the court govern the consequences of reinstatement orders, including the employer's liability to pay salary even where the employee is not allowed to resume duty

Reasoning

The court reasoned that reinstatement restores the employee to the position held prior to removal with full benefits, taking effect immediately. Once a termination is found unfair, the employer is obligated to comply or pay salary regardless. Drawing on the dissenting opinion of Mwilu J.A. in Co-operative Bank v BIFU and the court's own ruling in Patrick Njuguna Kariuki v Del Monte, the court held that money due under reinstatement remains recoverable even if the order is later reversed, so there is nothing capable of being stayed.

p. 4

Legal principles established

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  • An order of reinstatement takes effect immediately and is self-executory, subject only to the terms imposed in the order itself, and is not amenable to a stay of execution pending review or appeal

Court orders

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  1. 1.The application filed for the respondent on 03.06.2016 is dismissed
  2. 2.Each party shall bear own costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 42 Rule 7
  • Employment and Labour Relations Court ActSection 12
  • Employment and Labour Relations Court ActSection 3A
  • Court of Appeal Rules, 2010Rule 5(2)
  • Constitution of KenyaArticle 2(6)

Cases cited (2)

  • Co-operative Bank of Kenya Limited-Versus-Banking Insurance & Finance Union (Kenya)
    [2015]eKLR
  • Patrick Njuguna Kariuki-Versus-Del Monte (K) Limited
    [2012]eKLR Ruling delivered on 17.12.2012
Jurisdiction invoked
Order 42 Rules 6 and 7 of the Civil Procedure Rules, Section 3A and Section 12 of the Employment and Labour Relations Court Act, and the inherent powers of the court

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, "Aggrey Lukorito Wasike v Kenya Power And Lighting Company Limited [2016] KEELRC 386 (KLR)", Case Analysis (2016). Cause No 109 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/386/eng@2016-09-23

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