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ELRCAllowedNot stated in the judgment excerpt· [2020] KEELRC 402 (KLR)

Hedwig Nyalwal v Kenya Institute of Supplies Management [2020] KEELRC 402 (KLR)

Employment and Labour Relations Court
9 October 2020
MOMaureen Onyango
4,954 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court blocked KISM from hiring a new CEO, ruling that keeping the job open matters more than just paying money later.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Employment and Labour Relations Court at Nairobi in a claim by Hedwig Nyalwal, formerly Chief Executive Officer of the Kenya Institute of Supplies Management, whose employment was terminated by letter dated 27th March 2020 following a Special Council meeting of 26th March 2020. Two applications were before the court: the Claimant's Notice of Motion dated 30th March 2020 seeking an interim injunction restraining the Respondent from recruiting a substantive Chief Executive Officer to replace him pending determination of his claim for reinstatement, and the Respondent's Notice of Motion dated 15th April 2020 seeking to stay and set aside the interim injunction granted on 1st April 2020. The Respondent made no submissions on its application, which the court deemed abandoned. Applying the Giella v Cassman Brown principles, and the Mrao definition of a prima facie case, the court found the Claimant had shown a right apparently infringed: the Respondent did not deny terminating his employment without due process, and the legality of his appointment was a matter for trial. The court further held that since there can be only one Chief Executive Officer, failure to preserve the position would render reinstatement impracticable, and that compensation is an inferior remedy to reinstatement. The court accordingly confirmed the interim injunction restraining the Respondent from headhunting, advertising, interviewing, recruiting or employing a substantive Chief Executive Officer to replace the Claimant pending hearing of the claim, with costs in the cause.

Key legal issues

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01

Whether the Claimant established a prima facie case

Holding

Yes - the dispute over the legality of the termination and of his appointment disclosed a right apparently infringed requiring explanation or rebuttal.

Reasoning

Applying the Mrao definition of a prima facie case, the court found that the Claimant alleged violation of Sections 41, 43 and 45 of the Employment Act by termination without an opportunity to be heard. The Respondent did not deny terminating without due process, and the legality of the appointment was a matter for trial. The first Giella principle was thus established.

p. 7
02

Whether the Claimant would suffer irreparable harm not compensable by damages

Holding

Yes - because only one Chief Executive Officer position exists, failure to preserve it would defeat reinstatement.

Reasoning

The court reasoned that there cannot be more than one Chief Executive Officer; recruitment of a substantive replacement would render reinstatement impracticable. Compensation being inferior to reinstatement, damages would not adequately compensate the Claimant should his position be filled pending trial.

p. 7
03

Whether the Respondent's application dated 15th April 2020 remained for determination

Holding

No - it was deemed abandoned for lack of submissions.

Reasoning

The Respondent filed no submissions in support of its application seeking to stay and set aside the interim injunction of 1st April 2020. The court therefore deemed it abandoned and confined the ruling to the Claimant's application dated 30th March 2020.

p. 5

Legal principles established

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  • A remedy of compensation is inferior to a remedy of reinstatement where termination was executed without due process, so entitlement to compensation does not defeat preservation of the position.
  • Where a vacant singular position would be filled, preservation is necessary because reinstatement would otherwise become impossible.

Court orders

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  1. 1.Interim injunction confirmed restraining the Respondent either by itself, servants and/or agents from headhunting, advertising, carrying out interviews, recruiting and employing a substantive Chief Executive Officer to replace the Claimant pending the hearing and determination of the claim
  2. 2.Respondent's application dated 15th April 2020 deemed abandoned for failure to submit
  3. 3.Costs of the applications shall be in the cause

Authorities

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Legislation

  • Supplies Practitioners Management ActSection 9(1); Section 3
  • Employment ActSections 41, 43, 45, 49(4)(c), 50
  • Public Service Commission ActSection 34(3)
  • Interpretation and General Provisions ActSection 43
  • Constitution of Kenya, 2010Articles 41, 48, 159(2)(d), 236(b)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (8)

  • Giella v Cassman Brown & Company Limited
    [1973] EA
  • Mrao Limited v First American Banka and Others
  • Republic v Kenya Institute of Management
    delivered 12th July 2019
  • Republic v Kenya Institute of Supplies Management Ex Parte Mwaniki Gachuba
  • Kenya Institute of Supplies Management v R Ex parte Mwaniki Gachuba
    Civil Appeal No. 496 of 2019
  • Tom Otieno Odongo v Cabinet Secretary Ministry of Labour Social Security Services & Another
    [2013] eKLR
  • Gladys Boss Shollei v Judicial Service Commission
    [2013] eKLR
  • Joab Mehta Oudia v Coffee Development Board of Trustee
    (2014) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Constitution of Kenya 2010 (as invoked by the parties); not expressly stated

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Hedwig Nyalwal v Kenya Institute of Supplies Management [2020] KEELRC 402 (KLR)", Case Analysis (2020). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/402/eng@2020-10-09

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