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ELRCPartially AllowedApplication dated 16th October, 2019 in Nakuru Employment & Labour Relations Cause No. 57 of 2019 (formerly Mombasa ELRC Cause No. 53 of 2019)· [2019] KEELRC 303 (KLR)

Venansio Mbataru Kariuki v Governor, County Government of Nyandarua & 2 others [2019] KEELRC 303 (KLR)

Employment and Labour Relations Court
14 November 2019
3,086 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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By an application dated 16th October, 2019 made under sections 1A, 1B, 3A and 63(c) and (e) of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, the claimant, a former County Executive Committee Member of Nyandarua County whose employment was terminated by press release and whose application of 22nd August, 2019 seeking interim reinstatement was dismissed on 9th October, 2019, sought stay of the ruling and orders, stay of proceedings, and a 45-day stay of execution pending his intended appeal to the Court of Appeal. The 1st and 2nd respondents opposed, contending the court was functus officio, that the application was an afterthought, that the claimant had been replaced and that damages would suffice. The 3rd respondent, the County Assembly, took no position on the stay but supported preservation of the subject matter, asserting the removal lacked due process under sections 31(a) and 40 of the County Government Act. The court framed three issues. It declined to stay its ruling and orders, holding that reinstatement is a final remedy that cannot issue at the interlocutory stage, and that staying the ruling would restore vacated status quo orders. It granted a stay of proceedings under Rule 16 of the ELRC (Procedure) Rules, 2016 to permit the claimant to pursue his appeal, and refused a 45-day stay of execution. Each party was ordered to bear its own costs. Judgment delivered at Nakuru on 14th November, 2019.

Key legal issues

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01

Whether the court should stay its ruling of 9th October, 2019

Holding

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

Reasoning

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.

p. 3
02

Whether stay of proceedings should issue pending the intended appeal

Holding

Granted under Rule 16 of the ELRC (Procedure) Rules, 2016

Reasoning

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.

p. 5
03

Whether a 45-day stay of execution could be granted

Holding

Declined

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.Stay of execution of the ruling and orders of 9th October, 2019 declined
  3. 3.Prayer for a 45-day stay of execution declined
  4. 4.Each party to bear own costs

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B, 3A, 63(c) and (e)
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Employment Actsections 49(3), 49(4)
  • County Government Actsections 31(a), 40
  • Employment and Labour Relations Court (Procedure) RulesRule 16
  • Constitution of Kenyaarticles 10, 47, 50, 179

Cases cited (12)

  • County Government of Nyeri & another v Cecilia Wangechi Ndungu
    [2015] eKLR
  • Richard Bwogo Birir versus Narok County Government & 2 others
    [2014] eKLR
  • Erinford Properties Ltd versus Cheshire County Council
    (1974) 2 All ER 448
  • Madhupaper International Ltd versus Kerr
    (1985) eKLR
  • Alliance Media Kenya Ltd versus World Duty Free Company Complex Ltd
    (2005) eKLR
  • Abdul Waheed Sheikh & another versus Mas Constructions Limited & others
    ELC No.1480 of 2014
  • James Juma Muchemi & Partners Limited versus Barclays Bank of Kenya Limited
    HCCC No.339 of 2011
  • Amal Hauliers Limited versus Abdulnasir Abukar Hassan
    [2017] eKLR
  • Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 Others
    [2014] eKLR
  • Cooperative Bank of Kenya Limited v Banking Insurance & Finance Union
    [2017] eKLR
  • Nampak Corrugated Wadesville versus Khoza
    (JA 14/98) [1998] Zalac 24
  • Alex Wainaina Mbugua versus Kenya Airways Limited
    [2017] eKLR
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

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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, "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.