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ELRCDismissedPetition (Notice of Motion dated 3rd September 2018)· [2019] KEELRC 970 (KLR)

Pascalla Mumbua Mutua & another v Nairobi Light Academy Primary School [2019] KEELRC 970 (KLR)

Employment and Labour Relations Court
26 July 2019
MOMaureen Onyango
1,686 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Petitioners, Pascalia Mumbua Mutua and Mary Nduku Kaloki, cleaners employed by Nairobi Light Academy Primary School since 2009 and 2011 respectively, filed a Notice of Motion dated 3rd September 2018 under Articles 10, 22, 23, 41, 47, 48, 50, 165 and 258 of the Constitution and Rule 23 of the Protection of Rights and Fundamental Freedoms Rules 2013. They sought conservatory orders staying the Respondent's termination notices dated 24th August 2018, restraining replacement or harassment, and compelling issuance of appointment letters and job identification cards on permanent and pensionable terms. They contended that they were never issued appointment letters, were made to sign successive probationary contracts contrary to Sections 42(3) and 45(3) of the Employment Act, and were verbally dismissed six days after receiving the notices. Interim orders restraining termination were issued on 5th September 2018 and later extended pending negotiations, which failed. When the application came up for hearing on 27th May 2019, the Respondent did not appear and the Petitioners relied on the pleadings. Maureen Onyango J, relying on Makau J's decision in Kenya Private Universities Workers Union v Presbyterian University of East Africa, held that a stay of termination is a strange relief amounting to reinstatement or specific performance of a contract of service, which cannot be granted before a full hearing. Since the Petitioners' contracts had lapsed on 29th September 2018, the court could only preserve that which exists. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether conservatory orders can stay termination of employment whose contracts had already lapsed

Holding

No - such orders would amount to reinstatement, a remedy available only after a full hearing establishing unfair termination under Section 49 of the Employment Act

Reasoning

The Petitioners' contracts were lapsing on 29th September 2018 and by the date of judgment had long expired. Interim conservatory orders preserve existing states of affairs; they cannot revive a contract that no longer exists. Reinstatement, following Makau J's ruling in Kenya Private Universities Workers Union v Presbyterian University of East Africa, would amount to specific performance of a contract of service against the employer's wish, which a court should not order before hearing evidence and determining unfairness on the merits under Section 49 of the Employment Act. The application was therefore dismissed with no orders as to costs.

p. 3

Legal principles established

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  • A stay of a termination letter is a strange relief; granting it would amount to reinstatement or specific performance of a contract of service before hearing the case on merits
  • Conservatory orders preserve only existing rights; courts cannot revive a lapsed employment contract through interim orders

Court orders

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  1. 1.The application dated 3rd September 2018 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of KenyaArticle 10(2)(c)
  • Constitution of KenyaArticle 22(1) and (2)(a), (c)
  • Constitution of KenyaArticle 23(1)
  • Constitution of KenyaArticle 41(1), (2)(b)
  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticle 165
  • Constitution of KenyaArticle 258(1) and (2)(c)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013Rule 23
  • Employment ActSection 45(3)
  • Employment ActSection 42(3)
  • Employment ActSection 49

Cases cited (1)

  • Kenya Private Universities Workers Union -V- Presbyterian University of East Africa
    [2019] eKLR
Jurisdiction invoked
Articles 22(1) and (2)(a), (c), 23(1), 165 and 258(1) and (2)(c) of the Constitution of Kenya; Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013

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, "Pascalla Mumbua Mutua & another v Nairobi Light Academy Primary School [2019] KEELRC 970 (KLR)", Case Analysis (2019). Petition (Notice of Motion dated 3rd September 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/970/eng@2019-07-26

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