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ELRCDismissedNotice of Motion filed 20.03.2018 (ELRC cause, application dated 20.03.2018)· [2018] KEELRC 1319 (KLR)

Lucy Kawira Mbuba v Survo General Works Limited & 2 others [2018] KEELRC 1319 (KLR)

Employment and Labour Relations Court
31 July 2018
BOByram Ongaya
1,370 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court declined to stop an employer from demoting or making a CEO redundant, holding courts rarely interfere with employers' human resource decisions.

What this practically means

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Executive summary

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The claimant, Chief Executive Officer of the 1st respondent since a contract dated 01.09.2017 with a six-month probationary period, moved the Court by notice of motion dated 20.03.2018 under Order 40 Rules 1 and 3 of the Civil Procedure Rules, sections 1A, 1B and 3A of the Civil Procedure Act, section 12 of the ELRC Act and Rule 16 of the ELRC Rules, 2011. She sought injunctions restraining the respondents from constructively and unlawfully dismissing her, interfering with her duties, suspending or dismissing her, varying or terminating her contract, and advertising her CEO post pending the suit. The respondents, through the replying affidavit of the 2nd respondent Mercy Muthoni Mbuba, opposed the application, stating that the probationary appointment was not confirmed as unsatisfactory, the claimant was to be demoted and her position made redundant in a business reorganisation, and that substantially similar issues were pending in Nairobi High Court Civil Case No. 130 of 2018 concerning the validity of the directors and the family's shareholding dispute. The court framed the question as whether it should interfere in the employer's human resource powers. Applying its own decision in Geoffrey Mworia v Water Resources Management Authority and Giella v Cassman Brown, the court held the claimant had not established illegality, breach of contract or a prima facie case; her directorship challenge belonged to the pending High Court suit where remedies such as reinstatement or damages would be available. The balance of convenience also favoured non-intervention. The application was dismissed with costs in the cause on 31 July 2018.

Key legal issues

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01

Whether the Court should interfere in the employer's exercise of human resource powers over the claimant

Holding

The claimant did not establish illegality or breach of contract warranting intervention; her real dispute concerns the validity of the directors, which is the subject of separate litigation, and appropriate remedies would be available there or upon restructuring

Reasoning

The court adopted its earlier principles in Geoffrey Mworia requiring grounds such as constitutional or statutory contravention, contractual breach, manifest unfairness, or exhaustion of internal procedures. The claimant raised issues outside the contract of service, challenging the validity of the 1st respondent's directors, which is pending in High Court Civil Case No. 130 of 2018. If those directors are found improperly acting, remedies like reinstatement or damages would be available, so no interlocutory intervention was warranted.

p. 2
02

Whether a prima facie case and balance of convenience justified the injunctive reliefs

Holding

No prima facie case was established and the balance of convenience did not favour the prayers; monetary and other remedies would remain available to the claimant

Reasoning

Applying Giella v Cassman Brown, the claimant failed on the first and third limbs. Ordering the employer to hold back its restructuring would not balance the justice of the case, and the claimant retains adequate remedies in damages or otherwise, whether through the pending High Court suit on directorship or a subsequent claim if the redundancy proceeds.

p. 2

Legal principles established

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  • The court will very sparingly interfere in the employer's entitlement to perform human resource functions, and intervention requires contravention of the Constitution or legislation, breach of contract, manifest unfairness, exhaustion of internal procedures, or an internal process made impossible

Court orders

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  1. 1.The application is dismissed with costs in the cause

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40 Rules 1 and 3
  • Civil Procedure ActSections 1A, 1B and 3A
  • Employment and Labour Relations Court ActSection 12
  • Employment and Labour Relations Court Rules, 2011Rule 16

Cases cited (2)

  • Geoffrey Mworia -Versus- Water Resources Management Authority and 2 Others
    [2015] eKLR
  • Giella -Versus- Cassman Brown
    (1973) EA 358
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act and Rule 16 of the Employment and Labour Relations Court Rules, 2011

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, "Lucy Kawira Mbuba v Survo General Works Limited & 2 others [2018] KEELRC 1319 (KLR)", Case Analysis (2018). Notice of Motion filed 20.03.2018 (ELRC cause, application dated 20.03.2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1319/eng@2018-07-31

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