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ELRCDismissedNotice of Motion dated 24th October 2016 in a Petition· [2017] KEELRC 1888 (KLR)

Norah Okoth v Kenya Pipeline Company Limited [2017] KEELRC 1888 (KLR)

Employment and Labour Relations Court
27 January 2017
LNLINNET NDOLO
1,796 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 reinstate a dismissed Company Secretary mid-case, confirming reinstatement is usually only granted after a full hearing.

What this practically means

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Executive summary

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This is a ruling on the Petitioner's Notice of Motion dated 24th October 2016 in an employment petition before the Employment and Labour Relations Court at Nairobi (Linnet Ndolo J). The Petitioner, formerly Company Secretary of the Respondent who had twice acted as Managing Director, was sent on compulsory leave, subjected to a disciplinary process, and dismissed. She sought conservatory orders staying her termination, prohibiting recruitment to her former position (advertisement KPC/ADVT/34/2016), and reinstatement pending determination of the Petition, alleging violations of Articles 41, 47, 50 and 135 of the Constitution, denial of fair hearing before an impartial tribunal, and lack of jurisdiction in the Board Chairman. The Respondent contended the orders were final in nature, the termination lawful, and recruitment should not be halted in the public interest. Applying Giella v Cassman Brown, the court held that reinstatement is a substantive remedy for after a full hearing, and that an interlocutory order reversing an effected termination will not issue save where termination defied a subsisting court order. Halting recruitment of a Company Secretary for a strategic government agency was against the public interest, and the balance of convenience favoured the Respondent. The application was dismissed, with the interim orders of 26th October 2016 vacated and costs of the application to be in the Petition.

Key legal issues

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01

Whether the conditions for interlocutory injunctive relief (Giella v Cassman Brown) were met

Holding

The application failed; no prima facie case justifying reversal of termination at interlocutory stage, and the balance of convenience favoured the Respondent.

Reasoning

The court applied the three Giella v Cassman Brown conditions. Citing Shollei v JSC and Kimungui v Bomas of Kenya, it held reinstatement is a final, substantive remedy not grantable interlocutorily. An interlocutory stay or reinstatement that would reverse an already effected termination will not issue, save where termination occurred in defiance of a subsisting court order (Mumo Mwangangi). On recruitment, following Odongo v CS Ministry of Labour, the court held halting recruitment would not serve the public interest, and the balance of convenience tilted toward the Respondent.

p. 5

Legal principles established

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  • An interlocutory order that would reverse an effected termination of employment will not ordinarily issue, save where the termination was effected in defiance of a subsisting court order.
  • Reinstatement is a substantive remedy that should normally issue after a full hearing, not at the interlocutory stage.
  • The rights of an employee in the public service must be balanced against the public interest in assessing the balance of convenience.

Court orders

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  1. 1.The Petitioner's application is declined
  2. 2.The costs of the application will be in the Petition
  3. 3.The interim orders granted on 26th October 2016 are vacated
Jurisdiction invoked
Constitution of Kenya 2010, Articles 41, 47, 50 and 135 (invoked by the Petitioner); Employment and Labour Relations Court original jurisdiction over employment disputes

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, "Norah Okoth v Kenya Pipeline Company Limited [2017] KEELRC 1888 (KLR)", Case Analysis (2017). Notice of Motion dated 24th October 2016 in a Petition. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1888/eng@2017-01-27

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