Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissed· [2020] KEELRC 292 (KLR)

Matilda Tenge Mwachia v Kenya Industrial Estate Limited & another [2020] KEELRC 292 (KLR)

Employment and Labour Relations Court of Kenya
22 October 2020
HWHellen Wasilwa
2,352 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court ruled that reinstatement orders take effect immediately and cannot be paused, even if the employer plans to appeal.

What this practically means

#

Executive summary

#
The Respondents (Applicants) applied by Notice of Motion dated 17 August 2020 for stay of execution of the ruling and orders of Wasilwa J delivered on 13 August 2020, which set aside the disciplinary proceedings and termination letter and ordered the Claimant to continue working, pending an intended appeal. The Applicants argued they intended to appeal, that the appeal raised jurisprudential issues on constructive reinstatement and suo moto reinstatement, and that the reinstatement would cause substantial loss and workplace turmoil, relying on Kenya Airways Ltd v Alex Mbugua. The Claimant opposed, contending that the orders were negative and self-executing and thus incapable of being stayed (citing Aggrey Lukorito Wasike), that the application was overtaken by events since she had reported back to work but was barred entry, that no substantial loss was demonstrated (citing Antoine Ndiaye and Machira), and urging the Court to adopt Mwilu JA's dissenting opinion in Co-operative Bank v BIFU on the right to work. The Court framed two issues: whether the Order 42 rule 6(2) threshold was met, and whether the orders were capable of being stayed. It found the application timely but lacking on security, and held that an order returning the Claimant to work is self-executing and cannot be stayed, adopting Ongaya J's reasoning in Wasike, the Mwilu JA dissent, and the security analysis in Patrick Njuguna Kariuki v Del Monte. The Court dismissed the application, lifted the interim ex parte stay orders, directed compliance with the 13 August 2020 ruling, and awarded costs in the cause.

Key legal issues

#
01

Whether the applicants satisfied the Order 42 rule 6(2) threshold for stay

Holding

Although the application was filed without delay, the security element was not satisfied and, more fundamentally, the orders sought to be stayed could not be stayed at all.

Reasoning

The Court found the applicants had moved promptly after the 13/8/2020 ruling, meeting the timeliness requirement. However, the broken-down relationship and triable issues assertions required proof and were not arguments for stay. The missing element was security, which the applicants did not offer because of the nature of the orders, and which the Court held was impossible to furnish for reinstatement orders.

p. 3
02

Whether an order of reinstatement or continuation of employment is capable of being stayed

Holding

Such orders are self-executing and take effect immediately, and are therefore incapable of being stayed; no security can substitute for them.

Reasoning

Following Ongaya J in Aggrey Lukarito Wasike, reinstatement takes effect immediately and the employer is bound to comply by allowing the employee to resume duty and pay full salary until the order is reversed. The Court also adopted Mwilu JA's dissenting view in Co-operative Bank that reinstatement is a statutory remedy protecting the right to work, and Del Monte's holding that computing pay as security would fall short of the human dignity of the employee to work.

p. 3

Legal principles established

#
  • A reinstatement order or an order allowing an employee to continue working takes effect immediately, is self-executing, and is therefore incapable of being stayed; no security can be given in its place.

Court orders

#
  1. 1.The interim ex parte stay orders granted by the Court are lifted
  2. 2.The Respondents are directed to comply with the orders granted in the ruling of 13/8/2020
  3. 3.Costs in the cause

Authorities

#

Legislation

  • Employment and Labour Relations Court (Procedure) Rulesrule 17(4)
  • Civil Procedure RulesOrder 42 rule 6(2)(a) and Order 42 rule 6(2)
  • Civil Procedure ActOrder 42 rule 6(2)
  • Constitution of KenyaArticle 2(6)
  • Universal Declaration of Human RightsArticle 23(1)

Cases cited (7)

  • Kenya Airways Limited vs. Alex Mbugua
    [2019] eKLR
  • Aggrey Lukorito Wasike vs. Kenya Power and Lighting Company Limited
    [2016] eKLR (Nyeri ELRC case No. 109/2015)
  • Antoine Ndiaye vs. African Virtual University
    [2015] eKLR
  • Machira T/A Machira & Company Advocates vs. East African Standard (No 2)
    [2002] KLR 63
  • Victory Construction vs. BM (a minor suing through next friend one PMM)
    [2019] eKLR
  • Co-operative Bank of Kenya Limited vs. Banking Insurance & Finance Union (Kenya)
    [2015] eKLR
  • Patrick Njuguna Kariuki vs Del Monte (K) Limited
    (2020) eKLR
Jurisdiction invoked
Order 42 rule 6(2) of the Civil Procedure Rules; inherent powers of the Employment and Labour Relations Court over its own interlocutory applications

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Matilda Tenge Mwachia v Kenya Industrial Estate Limited & another [2020] KEELRC 292 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/292/eng@2020-10-22

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