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ELRCDismissedNot stated in judgment· [2020] KEELRC 253 (KLR)

Dolly Nyambura Mwangi v Faulu Micro Finance Bank Limited [2020] KEELRC 253 (KLR)

Employment and Labour Relations Court
6 November 2020
MOMAUREEN ONYANGO
3,902 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to reinstate a bank employee before trial, confirming interim reinstatement is only granted in exceptional cases.

What this practically means

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Executive summary

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The Applicant, Dolly Nyambura Mwangi, formerly Head of Bancassurance at Faulu Microfinance Bank Limited, moved the Employment and Labour Relations Court by notice of motion dated 2nd September 2019 seeking interim injunctions restraining the Respondent from filling her former position and an interim reinstatement order, pending determination of her claim challenging the termination of her employment on 10th June 2019 as substantively and procedurally unfair. The Respondent opposed the application, asserting the termination was lawful, that dues were settled, and that as insurer it was statutorily obliged to fill the Principal Officer position promptly, as flagged by the Insurance Regulatory Authority. In a ruling delivered at Nairobi on 6th November 2020, Maureen Onyango J framed two issues: whether the application met the threshold for the orders sought, and whether they should issue as prayed. Applying the Giella v Cassman Brown principles, the court found the Applicant had not established a prima facie case, nor irreparable harm incapable of compensation by damages, and that the balance of convenience therefore tilted against her. The court further applied the settled rationale, drawn from section 49 of the Employment Act, Rule 17(10) of the ELRC Procedure Rules and prior ELRC authority, that reinstatement is a final, specific-performance order grantable at the interlocutory stage only in exceptional cases, none of which the Applicant demonstrated. The application was dismissed with costs to abide the outcome of the main suit. The ruling was delivered virtually pursuant to COVID-19 directives.

Key legal issues

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01

Whether the Applicant established a prima facie case with a probability of success

Holding

The Applicant failed to demonstrate a prima facie case; whether her case is likely to succeed remains a matter for the full hearing.

Reasoning

Applying the Mrao Ltd definition of a prima facie case, the court found no illustration on the face of the record that the Applicant's claim was likely to succeed, holding that this remained a matter for determination once all evidence is taken at the full hearing.

p. 4
02

Whether the Applicant demonstrated irreparable harm not compensable by damages

Holding

No irreparable harm was demonstrated; damages would be an adequate remedy.

Reasoning

Citing Nguruman Limited v Jan Bonde Nielsen, the court held that the Applicant bore the burden of demonstrating actual, substantial and demonstrable injury not adequately compensable by damages. She did not demonstrate such harm nor any exceptional circumstances justifying reinstatement under section 49(4) of the Employment Act, including the common law bar on specific performance of service contracts.

p. 6
03

Whether the balance of convenience favoured the Applicant

Holding

Having failed on the first two Giella principles, the balance of convenience necessarily tilted against the Applicant.

Reasoning

The Respondent had submitted that the Head of Bancassurance position doubled as the statutorily required Principal Officer under insurance regulations and had to be filled. The Applicant identified no specific qualified officers by name or position. The court held the final principle must tilt against her since the first two failed.

p. 6
04

Whether an interim reinstatement order can properly be granted pending full hearing

Holding

No - reinstatement is a final, specific-performance order that should only issue in exceptional cases, and Rule 17(10) bars ex parte reinstatement orders.

Reasoning

Relying on Anthony Omari Ongera v Teachers Service Commission, Ahmed Aden Hire and Alfred Nyungu Kimungui, the court reasoned that interim reinstatement denies the employer a chance at its defence and is warranted only where termination is patently unfair or automatically unfair, such as discrimination on pregnancy, race, gender or religion - none of which was alleged here.

p. 4

Legal principles established

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  • An order of reinstatement is final in nature and should only issue in exceptional cases warranting specific performance, and cannot be granted at the interlocutory stage save in exceptional circumstances
  • Where damages may be an appropriate remedy, an order of injunction (or interim reinstatement) would not be granted

Court orders

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  1. 1.The application dated 2nd September 2019 fails and is dismissed
  2. 2.Costs shall abide the outcome of the main suit

Authorities

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Legislation

  • Employment ActSections 49(1), (3), (4) and 50
  • Employment and Labour Relations Court ActSections 12(1)(a), 12(3)(i) and 12(4)
  • High Court [Practice and Procedure] Rules of the Judicature ActRule 3(1)
  • Employment and Labour Relations Court (Procedure) RulesRule 17
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d) and 48

Cases cited (7)

  • Anthony Omari Ongera v Teachers Service Commission
    [2017] eKLR
  • Ahmed Aden Hire versus Natif Jama and County Government of Garissa
    Petition No. 121 of 2016
  • Alfred Nyungu Kimungui versus Bomas of Kenya
    [2013] eKLR
  • Giella v Cassman Brown & Co Ltd
    [1973] EA 358
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    [2003] eKLR
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Julius Kipkeny Kolil and Another v Kenya Commercial Bank and 2 Others
    (2013) eKLR
Jurisdiction invoked
Sections 12(1)(a), 12(3)(i) and 12(4) of the Employment and Labour Relations Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Dolly Nyambura Mwangi v Faulu Micro Finance Bank Limited [2020] KEELRC 253 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/253/eng@2020-11-06

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