Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedCause No 979 of 2018· [2018] KEELRC 704 (KLR)

Thomas Skamo Loltianya v Automobile Association of Kenya (Being Sued through Jinaro Kipkemoi Kibet & 2 others [2018] KEELRC 704 (KLR)

Employment and Labour Relations Court
26 October 2018
HWHellen Wasilwa
1,166 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court refused to reinstate a dismissed finance officer before trial, ruling that reinstatement is a final remedy that must wait for a full hearing.

What this practically means

#

Executive summary

#
This was a ruling on the Claimant's Notice of Motion dated 15 June 2018, brought under Order 40 Rules 1 and 3 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and Rule 17 of the ELRC (Procedure) Rules 2016. The Claimant, engaged on a five-year contract commencing 1 December 2017 (varied February 2018) as Deputy Chief Finance Officer with an expectation of appointment as Chief Finance Officer, was terminated by a letter dated 22 May 2018 said to have been issued by the Respondent's Chief Executive Officer. He sought a mandatory injunction reinstating him to the office of Chief Finance Officer, injunctions restraining the Respondent from interfering with his duties, from filling or advertising the post, and from varying or terminating his employment pending hearing of the cause. He argued the termination was irregular, contravened Articles 27, 28, 30, 41 and 47 of the Constitution and Section 41 of the Employment Act, and cited English authorities on protection of employment contracts by injunction. The Respondent opposed, contending the Claimant was never appointed Chief Finance Officer. The Court (Wasilwa J) held that the orders sought — particularly to reverse a termination already effected — were final orders that would determine the entire claim, and could not properly be granted at the interlocutory stage. The application was dismissed with costs in the cause, and the main cause was directed to proceed to hearing.

Key legal issues

#
01

Whether reinstatement and restraints on termination can be ordered on an interlocutory application

Holding

The Court declined to grant the orders, holding they are final orders that determine the entire claim and must await the hearing of the main cause.

Reasoning

The Court observed that the application sought to stop a termination already effected and to restrain termination, filling and advertising of the post — relief that would dispose of the whole dispute before trial. Such final orders are not grantable at the interlocutory stage; the proper course is to let the main cause proceed to full hearing where the legality of the termination and the contract variation claims can be tried on the evidence.

p. 2

Legal principles established

#
  • A mandatory injunction amounting to final relief (reinstatement) cannot be granted at the interlocutory stage of an employment cause

Court orders

#
  1. 1.The application is dismissed
  2. 2.The main cause to proceed for hearing
  3. 3.Costs in the cause

Authorities

#

Legislation

  • Civil Procedure Rules, 2010Order 40 Rules 1 and 3
  • Civil Procedure ActSections 1A, 1B and 3A
  • ELRC (Procedure) Rules 2016Rule 17
  • Constitution of KenyaArticles 27, 28, 30, 41 and 47
  • Employment ActSection 41

Cases cited (2)

  • Lew -v- The Board of Trustees on behalf of United Synagogue
    feoul EWHC 1265
  • Jones -v- Gwent County Council
    ITQQ21 IRLR 5
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act, Order 40 Rules 1 and 3 of the Civil Procedure Rules, 2010 and Rule 17 of the ELRC (Procedure) Rules 2016

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Thomas Skamo Loltianya v Automobile Association of Kenya (Being Sued through Jinaro Kipkemoi Kibet & 2 others [2018] KEELRC 704 (KLR)", Case Analysis (2018). Cause No 979 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/704/eng@2018-10-26

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