Abdulahi Mohammed Omar v Energy Regulatory Commission [2019] KEELRC 736 (KLR)
The bottom line
#A Kenya Employment Court kept protective orders in place for a dismissed worker, rejecting the employer's attempt to overturn them, though reinstatement awaits full hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the ex parte orders of 30th November 2018 should be set aside or reviewed for material non-disclosure and misrepresentation of facts
The application for review fails because the Respondent did not prove any of the grounds for review under Rule 33(1) of the ELRC (Procedure) Rules 2016
The court set out the four grounds for review in Rule 33(1) of the ELRC (Procedure) Rules 2016 and examined the Respondent's allegations of non-disclosure and misrepresentation, including the claim that the Petitioner was not servicing any mortgage facility at the time of dismissal. The court found the Respondent had not discharged the burden of proving any of the enumerated grounds and dismissed the review application.
Whether the interim orders issued on 30th November 2018 should be confirmed pending the Petition
The interim orders restraining recruitment to the Petitioner's former position, preserving the 3% mortgage interest rate, and compelling delivery of disciplinary documents and CCTV footage are confirmed
The court found that Justice Ongaya was properly guided by the law in granting the interim orders because the Petitioner demonstrated a case with a likelihood of success and was servicing a mortgage at 3% interest. On the documents and CCTV footage, the Respondent never communicated that the materials were unavailable, having been sought even before the disciplinary hearing.
Whether the Respondent's claim that the disciplinary documents and CCTV footage were unavailable justifies variation of the disclosure order
The claim of unavailability is rejected as an afterthought
The court noted that the Petitioner had sought the documents and CCTV footage even before the disciplinary hearing and the Respondent's only position was that they were not necessary. There was no communication that the documents or footage did not exist, so the late assertion of unavailability was an afterthought and could not ground review of the disclosure order.
Legal principles established
#- A party seeking review under Rule 33(1) of the ELRC (Procedure) Rules 2016 must prove at least one of the statutory grounds: discovery of new and important matter, error apparent on the face of the record, need for clarification, or other sufficient reason
- An interlocutory applicant who demonstrates a case capable of being determined by the court with a likelihood of success properly guides the court in granting interim conservatory relief
Court orders
#- 1.The Respondent's application dated 23rd January 2019 for review of the orders of 30th November 2018 is dismissed
- 2.The orders already granted by Hon. J. Ongaya on 30th November 2018 are confirmed
- 3.The order for reinstatement is reserved for consideration in the main Petition
- 4.Costs of both applications to be in the cause
- Jurisdiction invoked
- Articles 20, 22, 23(3), 32, 33, 35, 41(1), 47, 50(1) and 236 of the Constitution of Kenya 2010; Sections 3, 12(1)(a), (2) & (3) and 20(1) of the Employment and Labour Relations Court Act; Article 162(2) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdulahi Mohammed Omar v Energy Regulatory Commission [2019] KEELRC 736 (KLR)", Case Analysis (2019). Petition (ELRC) - applications dated 28th November 2018 and 23rd January 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/736/eng@2019-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.