Olive Ann Wahura Thiong’o v World Wide Fund for Nature - Regional Office for Africa [2016] KEELRC 662 (KLR)
The bottom line
#A Kenyan employment court refused to stop an employer's recruitment because the former employee couldn't prove the new jobs matched her old role.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant established a prima facie case that the advertised Communications Manager positions were the same as her former position
No prima facie case was established because the Claimant produced no source document supporting her comparative analysis of the two positions
The Claimant relied on what she termed 'day to day functions' but did not produce any source document to support the job description in her comparative analysis. The Court could not verify the veracity of her analysis at the interlocutory stage, and in the absence of documentary support, her assertion of similarity between the positions failed to meet the prima facie case threshold under the Giella test.
Whether the Claimant would suffer irreparable harm if the injunction was not granted
Damages would be adequate since the Claimant was on a fixed-term contract
The Claimant's contract ran from 1st October 2015 to 31st September 2017 on a fixed term. Since any finding of unlawful termination would sound in damages under a fixed-term contract, the second Giella condition of irreparable harm not compensable by damages was not satisfied, providing an independent basis for refusing the injunction.
Where the balance of convenience lies
The balance of convenience does not favour stopping recruitment for positions declared in the current staff establishment
The Court considered the effect of stopping the Respondent from filling Communications Manager positions already provided for in the current staff establishment. Drawing on the Shollei decision, the Court reasoned that barring an employer from exercising a management mandate such as recruitment should only be done with circumspection, tipping the balance against the grant of the interlocutory relief.
Legal principles established
#- An interlocutory injunction requires a prima facie case with probability of success, irreparable harm not compensable by damages, and balance of convenience in the applicant's favour
- An order barring an employer from carrying out a management mandate such as recruitment should be granted after much reflection and with circumspection
Court orders
#- 1.The Claimant's Notice of Motion dated 17th August 2016 is dismissed
- 2.Costs to be in the cause
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Olive Ann Wahura Thiong’o v World Wide Fund for Nature - Regional Office for Africa [2016] KEELRC 662 (KLR)", Case Analysis (2016). Cause No 1654 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/662/eng@2016-09-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.