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ELRCDismissedNotice of Motion dated 11th July, 2018 (ELRC Cause)· [2018] KEELRC 74 (KLR)

Jairus Katere Shiamala v Kenya National Private Security Workers Union (KNOSWU) & 3 others [2018] KEELRC 74 (KLR)

Employment and Labour Relations Court
11 December 2018
3,342 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court refused to award terminal benefits and compensation early in the case, ruling such final relief must wait until the full hearing.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 11th July 2018 in an employment cause before the Employment and Labour Relations Court at Nairobi, presided over by Lady Justice Hellen Wasilwa. The Applicant, a former employee of the 1st Respondent trade union, sought orders compelling the 1st Respondent to pay terminal benefits, underpayments and entitlements of Kshs. 617,884.00 for the contract between 15th July 2011 and 31st March 2016, plus 12 months' salary (Kshs. 630,000.00) as compensation for alleged unlawful termination, with interest at court rates. The motion invoked Sections 3 and 12 of the ELRC Act, Section 4 of the Fair Administrative Action Act, various Employment Act sections and constitutional articles. The 1st, 2nd and 3rd Respondents and the Interested Party opposed, relying on Grounds of Opposition and a Replying Affidavit sworn by the National General Secretary, Isaac G. M. Andabwa, contending that the prayers were final and substantive orders incapable of being granted at the interlocutory stage, citing Olive Mwihaki Mugenda v Okiya Omutata Okoiti and Kenya Airways v Joseph Otieno. The Applicant also raised a Preliminary Objection against the Replying Affidavit on the ground of non-compliance with Rule 9 of the Oaths and Statutory Declaration Rules. The court found the orders sought identical to those in the main claim, held them to be final orders, found no imminent injustice, dismissed the application, directed the main claim to proceed to hearing, and ordered costs of the application to be in the cause.

Key legal issues

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01

Whether mandatory/final orders can issue at the interlocutory stage

Holding

The court declined to grant the final orders sought on the Motion, holding them to be final orders reservable for the full hearing of the main claim

Reasoning

The court compared the prayers in the Notice of Motion with the reliefs in the main claim and found them identical, concerning withholding of terminal benefits and unlawful termination. Relying on Olive Mwihaki Mugenda v Okiya Omtata Okoiti, it held such substantive relief can only be granted at interlocutory stage in exceptional circumstances where the applicant is bound to succeed and injustice would otherwise result. No imminent injustice was demonstrated, so the application was dismissed and the main claim set down for hearing.

p. 5
02

Whether absence of imminent injustice defeats the interlocutory application

Holding

Yes - without demonstrated imminent injustice the discretionary relief could not issue

Reasoning

Even accepting the Applicant's allegations of economic hardship, the court found no imminent injustice that would flow from deferring the substantive reliefs to the full hearing. The claimant's entitlements, if any, would be determined at the trial of the main claim, so granting the orders on the Motion would pre-empt the hearing.

p. 5

Legal principles established

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  • Final and substantive orders cannot be granted at the interlocutory stage except in exceptional circumstances where the court is satisfied the party is bound to ultimately succeed and failure to grant would cause injustice.

Court orders

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  1. 1.The Application dated 11th July, 2018 is dismissed
  2. 2.The main claim to proceed for hearing
  3. 3.Costs of the application to be in the cause

Authorities

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Legislation

  • Employment and Labour Relations Court ActSections 3 & 12
  • Fair Administrative Action ActSection 4
  • ELRC (Procedure) RulesRule 17
  • Employment ActSections 17-19, 35, 36, 41, 42, 43, 44, 45, 46, 49 & 50
  • Constitution of Kenya, 2010Articles 19, 20, 21, 22, 23, 27, 28, 29(d)(f), 41, 43, 47, 50, 159, 258 & 259
  • Oaths and Statutory Declaration RulesRule 9

Cases cited (2)

  • Olive Mwihaki Mugenda & Another v Okiya Omutata Okoiti & 4 Others
    (2016) eKLR
  • Kenya Airways Company Limited v Joseph Otieno & 14 Others
    (2018) eKLR
Jurisdiction invoked
Sections 3 & 12 of the ELRC Act, 2014; Rule 17 of the ELRC (Procedure) Rules, 2016; Articles 22, 23, 41, 47 and 50 of the Constitution of Kenya, 2010

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, "Jairus Katere Shiamala v Kenya National Private Security Workers Union (KNOSWU) & 3 others [2018] KEELRC 74 (KLR)", Case Analysis (2018). Notice of Motion dated 11th July, 2018 (ELRC Cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/74/eng@2018-12-11

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