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ELRCDismissed· [2018] KEELRC 1592 (KLR)

Paul Kiprop Chepruto v University Council Moi University & 3 others [2018] KEELRC 1592 (KLR)

Industrial Court / Employment and Labour Relations Court
5 July 2018
MOMAUREEN ONYANGOMNMATHEWS NDERI NDUMA
2,385 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 ruled that a fired employee cannot be temporarily reinstated unless the court first finds the dismissal was unfair.

What this practically means

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Executive summary

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The claimant, formerly Deputy Vice Chancellor (Administration, Planning and Development) and a lecturer, was issued with a notice to show cause in 2016, suspended, subjected to a disciplinary hearing on 27th January 2017, and his employment was terminated by letter dated 24th February 2017, followed by a further letter dated 22nd March 2017. By a notice of motion dated 3rd April 2017 he sought interim orders suspending the termination letters, reinstatement pending his internal appeal and pending the suit, a bar on advertising or appointing a replacement, and restraints against the respondents. He invoked Articles 10, 232, 27, 25(c) and 50 of the Constitution and sections 4(2), 49 and 51 of the Employment Act, and relied on Giella v Cassman Brown. The respondents, through the affidavit of Hellen J. C. Yego, maintained that due process was followed, that the claimant had an appeal pending and should exhaust internal mechanisms, and that reinstatement is a substantive remedy not grantable at the interlocutory stage. The court held that reinstatement under sections 49(3) and 50 of the Employment Act presupposes a prior finding of unfair termination, applying the section 49(4) factors, and that Giella, which contemplates a prohibitory injunction, is inapplicable where the termination has already occurred and the claimant seeks a mandatory injunction of reinstatement. The application was dismissed with costs in the cause. The substantive claim, seeking quashing orders, reinstatement, compensation and damages, remains for hearing.

Key legal issues

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01

Applicability of the Giella interlocutory injunction test to reinstatement after termination

Holding

Giella does not apply; the claimant seeks a mandatory injunction to reverse a completed termination, so the application fails

Reasoning

The court distinguished between a prohibitory injunction, which stops action not yet taken, and the mandatory relief of reinstatement sought here. Since the employment was already terminated when suit was filed, the Giella framework cannot ground the interim orders sought.

p. 4
02

Preconditions for ordering reinstatement under sections 49 and 50 of the Employment Act

Holding

Reinstatement can only be ordered after the court establishes unfair termination, applying the section 49(4) factors

Reasoning

Section 49(3) as read with section 50 empowers reinstatement, but section 49(4) requires the decision-maker to be satisfied that the termination was unfair before considering the listed factors, including the common law rule against specific performance of contracts of service except in exceptional circumstances.

p. 3

Legal principles established

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  • Before ordering reinstatement the court must first establish that the termination was unfair, and then consider the factors in section 49(4) of the Employment Act
  • Giella v Cassman Brown, which anticipates a prohibitive injunction, is not applicable where the act complained of (termination) has already taken place and the claimant seeks a mandatory injunction of reinstatement

Court orders

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  1. 1.The claimant's application dated 3rd April 2017 is dismissed
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 232, 27, 25(c), 50(2)(a),(b),(c)
  • Employment ActSections 4(2), 49(1),(3),(4), 50, 51(1),(2),(3)

Cases cited (8)

  • GIELLA -V- CASSMAN BROWN LIMITED
  • RE KESHAVLAL PUNJA PARBAT SHAH
    (1955) 22 EACA 381
  • HENRY N. GICHURU -V- MINISTER FOR HEALTH & THE KENYA NATIONAL HOSPITAL BOARD
    [2002] eKLR
  • JOSEPH KIPONDA -V- INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSIONS & ANOTHER
    [2013] eKLR
  • MRAO LIMITED -V- FIRST AMERICAN BANK OF KENYA LIMITED & 2 OTHERS
    [2003]
  • FRANCIS MWENDWA TITUS -V- KENYA PIPELINE COMPANY LIMITED
    [2017]
  • PAMELA WANGUI KIAMA -V- COUNTY PUBLIC SERVICE BOARD OF NYANDARUA & 2 OTHERS
    [2014] eKLR
  • ANTHONY MUTIA MWANDIA -V- KENYA CIVIL AVIATION AUTHORITY & ANOTHER
Jurisdiction invoked
Employment Act (ss. 49, 50) as invoked in the determination; jurisdiction of the Industrial Court over the employment dispute

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, "Paul Kiprop Chepruto v University Council Moi University & 3 others [2018] KEELRC 1592 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1592/eng@2018-07-05

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