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ELRCDismissedCause No 1440 of 2018· [2019] KEELRC 2264 (KLR)

Mildred Mudany v Jhpiego Corporation (Kenya) [2019] KEELRC 2264 (KLR)

Employment and Labour Relations Court
15 February 2019
MOMAUREEN ONYANGO
2,665 words in judgment
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The bottom line

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Kenya's Employment Court declined to stop an employer's Performance Improvement Plan, ruling employees must wait for internal processes to conclude before seeking injunctions.

What this practically means

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Executive summary

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The Claimant, an employee of the Respondent, moved the court by Notice of Motion dated 15th October 2018 seeking interim injunctions restraining the Respondent from taking adverse action against her based on her 2017/2018 Annual Performance Appraisal and a Performance Improvement Plan (PIP) commenced on 14th August 2018, orders compelling the Respondent to hear her representations, lifting of the PIP, and costs. She alleged the PIP was stage-managed to maliciously terminate her employment. The Respondent opposed, contending the application was premature since the PIP process under its HR Manual had not concluded, that the Claimant did not use internal grievance procedures, and that granting the orders would amount to final relief at an interlocutory stage on contested facts. The court framed a single issue: whether the application met the Giella v Cassman Brown threshold for an interlocutory injunction. Applying Giella, the court found the Claimant had been given the opportunity to respond to her appraisal, that the PIP process she consented to was consistent with the Respondent's HR Manual, and that she read ill motive where there was none. Relying on Amos Omollo, the court held it should not interfere in an ongoing disciplinary process absent exceptional circumstances, and citing Royal Media Services, declined to decide contested facts on affidavit evidence. The court found the balance of convenience favoured the Respondent and dismissed the application with no orders for costs on 15th February 2019 (Maureen Onyango, Judge).

Key legal issues

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01

Whether the Claimant met the Giella v Cassman Brown threshold for an interlocutory injunction

Holding

The application failed; no prima facie case was demonstrated, the PIP process was legitimate and the balance of convenience favoured the Respondent

Reasoning

The Claimant consented to the PIP process commenced under the Respondent's Manual and was given opportunity to respond to her appraisal. The court found her fears anticipated actions not yet taken and read no ill motive in the Respondent communicating consequences of unsatisfactory performance. Granting orders based on contested facts would amount to a final judgment at interlocutory stage. Courts should not micromanage an employer's disciplinary process absent proof of violation.

p. 4
02

Prematurity of the application before conclusion of the PIP process

Holding

The application was premature; the Claimant should await the outcome of the PIP process and any actual adverse action

Reasoning

The court noted that authorities relied on by the Claimant involved applicants who approached the court after termination of employment, signalling that an application at the PIP stage is premature. The Claimant must prove an intention to go beyond what the Manual permits before the court will intervene in the process.

p. 4

Legal principles established

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  • Courts should not interfere in an employer's internal disciplinary or performance improvement process before its conclusion unless exceptional circumstances or violation of law are shown
  • Where an interlocutory dispute turns on conflicting facts, the court will decline to decide it on affidavit evidence and leave it to a full hearing

Court orders

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  1. 1.The Claimant's application dated 15th October 2018 is dismissed
  2. 2.No orders for costs

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 12(3)(i), (ii) and (iii)
  • Employment and Labour Relations Court (Procedure) RulesRule 17
  • Employment ActNot specified (remedies for damages or reinstatement)

Cases cited (8)

  • Banking Insurance Finance Union (Kenya) vs. Barclays Bank of Kenya Limited & Another
    [2016]
  • Christopher Onyango & 24 Others vs. Heritage Insurance Company Kenya Limited
    Cause No. 781 of 2015
  • Anthony Kavinguha vs. Erica Krug & Another
    [2014] eKLR
  • Royal Media Services Limited vs. Telkom Kenya Limited & 2 Others
    [2000] eKLR
  • Amos Omollo vs. County Government of Kisumu and Others
    [2018] eKLR
  • Judith Tsisiga vs. TSC
    [2017] eKLR
  • Alfred Kimungui vs. Bomas of Kenya
    [2013] eKLR
  • Giella vs. Cassman Brown & Company Limited
    [1973] E.A. 358
Jurisdiction invoked
Sections 12(3)(i), (ii) and (iii) of the Employment and Labour Relations Court Act and rule 17 of the Employment and Labour Relations Court (Procedure) Rules

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, "Mildred Mudany v Jhpiego Corporation (Kenya) [2019] KEELRC 2264 (KLR)", Case Analysis (2019). Cause No 1440 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2264/eng@2019-02-15

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