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ELRCDismissedApplication dated 26th August 2015· [2016] KEELRC 1829 (KLR)

Bernard Njoroge Mbao v Awil Ogle- the properietor Solia Plaza-Embakasi [2016] KEELRC 1829 (KLR)

Employment and Labour Relations Court
5 February 2016
MNMathews Nderi Nduma
716 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 refused to stop an alleged caretaker's eviction because he had no documentary proof of employment or regular salary payments.

What this practically means

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Executive summary

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The claimant, claiming to be a caretaker of Solia plaza in Embakasi, Nairobi, employed in April 2015 at a monthly salary of Kshs.40,000 plus housing, moved the court by an application dated 26th August 2015 seeking to restrain the respondent from terminating his services and from evicting him from his residence at the premises pending the hearing of the main claim. The respondent opposed the application through a replying affidavit, contending that the claimant was merely allowed to occupy a room at the request of a friend after relocating from Garissa, and that he was only occasionally engaged to assist the plumber and to purchase materials, being paid on a piece-work basis. The respondent maintained that the caretaker had for the past five years been Mr. Andrew Omwoyo Ondiko and that the claimant was never an employee. Applying the Giella v Cassman Brown test, the court found that the claimant had not established a prima facie case with a probability of success, as there was no documentary evidence of employment or regular monthly payment. It further held that damages would be adequate, noting the claimant's quantified claim for terminal benefits of Kshs.63,500 in the main suit, and that the balance of convenience favoured the respondent. The court expressly refrained from making findings on the merits, reserving those for the substantive hearing, and dismissed the application with costs in the cause on 5th February 2016.

Key legal issues

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01

Whether the claimant established a prima facie case of employment

Holding

The court was not satisfied that a prima facie case was established, there being no documentary evidence of employment or regular monthly payment

Reasoning

The claimant alleged employment as caretaker earning Kshs.40,000 monthly plus housing. The respondent asserted the claimant merely occupied a room at the instance of a friend and assisted the plumber on piece-work basis. The court found no documentary evidence of employment or regular monthly payments and declined to determine merits at the interlocutory stage, reserving the substantive suit for full hearing.

p. 2
02

Whether damages would be an inadequate remedy

Holding

Damages would be adequate since the claimant's claim for terminal benefits of Kshs.63,500 was quantified in the main suit

Reasoning

The court held that the claimant had not shown irreparable injury not compensable by damages. The claimant himself sought payment of terminal benefits in a quantified sum of Kshs.63,500 in the main suit, indicating monetary compensation would suffice if successful. Accordingly, the balance of convenience favoured the respondent and the injunction was refused.

p. 2

Legal principles established

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  • The applicant for a temporary injunction must establish a prima facie case with probability of success, irreparable injury not adequately compensable by damages, and that the balance of convenience favours granting the injunction
  • The grant of an interlocutory order is an exercise of judicial discretion which must be exercised judiciously

Court orders

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  1. 1.The application dated 26th August 2015 is dismissed with costs in the cause

Authorities

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Cases cited (2)

  • Giella – Vs. Cassman Brown Co. Ltd.
    [1975] E.A. 358
  • Seargent V. Patel
    [1949] IV A.A. C.A. 63
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment dispute (not expressly cited in the judgment)

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, "Bernard Njoroge Mbao v Awil Ogle- the properietor Solia Plaza-Embakasi [2016] KEELRC 1829 (KLR)", Case Analysis (2016). Application dated 26th August 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1829/eng@2016-02-05

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