Venansio Mbataru Kariuki v Governor, County Government of Nyandarua & 2 others [2019] KEELRC 303 (KLR)
The bottom line
#A Kenyan court ruled that an unfairly dismissed county official cannot get his job back temporarily while appealing, but the main case is paused.
What this practically means
#Executive summary
#Key legal issues
#Whether the court should stay its ruling of 9th October, 2019
Stay of the ruling was not granted; the ruling declined interim injunctive relief and directed the main suit to proceed, and staying it would restore the vacated status quo orders
The court revisited its ruling of 9th October, 2019 which declined interim reinstatement and vacated interim orders, and held that to stay the ruling would return the parties to the pre-ruling position where ex parte status quo orders had been in place. The court considered that reinstatement is a final remedy, guided by section 49(4) of the Employment Act and the Court of Appeal authorities, and should not issue at the interlocutory stage.
Whether stay of proceedings should issue pending the intended appeal
Granted under Rule 16 of the ELRC (Procedure) Rules, 2016
The claimant had filed a Notice of Appeal and sought stay of proceedings to pursue his appeal. The court held the right to appeal is secured and, since the claimant sought to first address the intended appeal rather than the main suit, stay of proceedings could issue within the provisions of Rule 16 of the Employment and Labour Relations Court (Procedure) Rules, 2016.
Whether a 45-day stay of execution could be granted
Declined
The court found that the claimant had not satisfied the conditions in Order 42 Rule 6(2) of the Civil Procedure Rules, including substantial loss and the provision of security, and that a stay of execution could not issue as sought. The respondents had already acted on the ruling, and damages would compensate the claimant if the appeal succeeded.
Legal principles established
#- An order of reinstatement should only issue as a final order upon the court delving into the merits of the suit, and can issue retrospectively
- Reinstatement cannot be granted as an interim order as that would amount to specific performance at the interlocutory stage
- The principles for stay of execution pending appeal are the same whether the application is before the High Court or the Court of Appeal
Court orders
#- 1.Stay of proceedings in the cause issued in accordance with Rule 16 of the Employment and Labour Relations Court (Procedure) Rules, 2016 to allow the claimant to pursue his intended appeal
- 2.Stay of execution of the ruling and orders of 9th October, 2019 declined
- 3.Prayer for a 45-day stay of execution declined
- 4.Each party to bear own costs
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63(c) and (e) of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules; Rule 16 of the Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Venansio Mbataru Kariuki v Governor, County Government of Nyandarua & 2 others [2019] KEELRC 303 (KLR)", Case Analysis (2019). Application dated 16th October, 2019 in Nakuru Employment & Labour Relations Cause No. 57 of 2019 (formerly Mombasa ELRC Cause No. 53 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/303/eng@2019-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.