Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in judgment (interlocutory Notice of Motion dated 16.12.2015)· [2016] KEELRC 1104 (KLR)

Francis Kariuki Njuguna v National Construction Authority [2016] KEELRC 1104 (KLR)

Employment and Labour Relations Court
7 June 2016
HWHellen Wasilwa
2,612 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A Kenyan employment court refused to reinstate a dismissed architect immediately, but froze recruitment to his old job until his unfair termination case is heard.

What this practically means

#

Executive summary

#
The Claimant, Arch. Francis Kariuki Njuguna, moved the Court by Notice of Motion dated 16 December 2015 under Articles 27, 41, 47 and 50 of the Constitution and Sections 28, 45 and 46(B) of the Employment Act, seeking stay of his summary termination of 4 December 2015, reinstatement pending hearing of the substantive suit, and restraint on recruitment to his former position of General Manager – Registration, Compliance and Training. He alleged the disciplinary process was biased, unprocedural and in breach of fair administrative action: no charge sheet, no preliminary investigations and no witness statements were supplied. The Respondent countered that the Claimant absented himself from work without approved leave contrary to clause 4.4(v) of its Human Resource Policy, that all due process was followed, and that the orders sought were substantive relief requiring a full hearing, citing Giella v Cassman Brown and Benedict Abonyo Omollo. Applying the Giella test, Wasilwa J held that the fairness of the termination could not be resolved on an interlocutory application without evidence; the Applicant demonstrated no irreparable injury since all relief, including reinstatement and damages, remains available at trial; and reinstatement at the interlocutory stage offends the balance of convenience, following the reasoning in Omollo and Gitile Naitule. The court declined to stay the termination or reinstate the Claimant but restrained the Respondent from advertising, soliciting or interviewing candidates for the position pending determination of the suit, with costs in the cause.

Key legal issues

#
01

Whether the Giella criteria were met for the interlocutory orders sought

Holding

Applicant failed on irreparable injury and balance of convenience; only a limited restraint order issued to preserve the position

Reasoning

The court applied the Giella test. Whether the Claimant was fairly treated could not be resolved on an application without viva voce evidence. Any loss is compensable in damages and the substantive relief, including reinstatement, remains available at trial. Reinstating an employee at the interlocutory stage, only to possibly reverse that later, is not in the balance of convenience. However, justice required preserving the Claimant's former position by restraining fresh recruitment pending full hearing.

p. 5

Legal principles established

#
  • Reinstatement of a dismissed employee is generally not granted at the interlocutory stage because the court would be entering the employer's management prerogative

Court orders

#
  1. 1.The Respondent be restrained on its own or through its employees or agents from advertising, soliciting and/or interviewing persons and/or candidates for the position of General Manager – Registration Compliance and Training pending the hearing and determination of the suit
  2. 2.Costs in the cause

Authorities

#

Legislation

  • Constitution of KenyaArticles 27, 41, 47, 50
  • Employment ActSections 28, 43, 45(2), 46(b)
  • Civil Procedure Act, Cap 21 Laws of KenyaSection 3A
  • Public Officers Ethics Actnot specified

Cases cited (7)

  • Shankar Sakiani Vs DHL Global Forwarding (K) Ltd
    (2012)
  • Alphonce Machanga Mwachanya Vs Operation 680 Limited
    (2013) eKLR
  • Abisalom Ajusa Magomere Vs Kenya Nut Company Limited
    (2014) eKLR
  • Benedict Abonyo Omollo Vs Judicial Service Commission
    Cause No. 47/2015 (2015) eKLR
  • Giella Vs Cassman Brown & Company Limited
    (1973) EA 358
  • Alfred Nyungu Kimungui Vs Bomas of Kenya
    (2013) eKLR
  • Professor Gitile Naitule vs. University Council Multimeida University College
Jurisdiction invoked
Articles 27, 41, 47 & 50 of the Constitution; Sections 28, 45, 46(B) Employment Act; Section 3A Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Francis Kariuki Njuguna v National Construction Authority [2016] KEELRC 1104 (KLR)", Case Analysis (2016). Not stated in judgment (interlocutory Notice of Motion dated 16.12.2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1104/eng@2016-06-07

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