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ELRCPartially AllowedNot stated in the judgment· [2020] KEELRC 489 (KLR)

Rosemary Ndinda Ndivo v Henkel Kenya Limited [2020] KEELRC 489 (KLR)

Employment and Labour Relations Court
16 September 2020
HWHellen Wasilwa
3,066 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court lifted interim orders protecting a dismissed manager's job, ruling reinstatement must wait until the full case is heard.

What this practically means

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Executive summary

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This ELRC ruling by Wasilwa J disposed of two competing interlocutory applications arising from the summary dismissal of the Claimant, Rosemary Ndinda Ndivo, formerly Divisional Manager AC-East Africa at Henkel Kenya Limited, on 16th April 2020 following disciplinary proceedings over allegations of fictitious payments, conflict of interest and insubordination. By her Notice of Motion dated 27th April 2020, the Claimant sought confirmation of interim orders (issued ex parte on 4th May 2020) restraining the Respondent from advertising, hiring or recruiting for her former position, reinstatement pending trial, and an order restraining negative recommendations to potential employers. The Respondent, by its Notice of Motion dated 13th May 2020, sought setting aside of the ex parte orders and striking out of the Claimant's suit on grounds of material non-disclosure - chiefly her alleged offer of mutual separation on 15th April 2020, her failure to appeal, and misstatement of her salary - and abuse of court process. It also argued lack of jurisdiction since injunction was not sought in the main suit. Both applications were supported by rival affidavits, including allegations that the Managing Director who investigated the Claimant also chaired her disciplinary hearing, and that the dismissal letter was signed by an unregistered HR officer. Considering the rival submissions, the Court declined to confirm the injunction, holding that the Claimant still had avenues for redress if her dismissal was later found unfair. It set aside the injunctive orders, directed the parties to proceed with the main claim, and awarded costs in the cause.

Key legal issues

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01

Whether to confirm or set aside the ex parte injunction of 4th May 2020

Holding

The injunction was set aside and the parties directed to proceed to the main claim

Reasoning

The Court reconsidered the interim order in force and noted that the Claimant still had avenues to obtain redress if the dismissal was later found unfair. Reinstatement and confirmation of the injunction would dispose of the substance of the main suit at the interlocutory stage. The Court did not find it justifiable to confirm the injunction and set the orders aside, directing the parties to proceed with the main claim, with costs in the cause.

p. 4
02

Respondent's contention that the suit and application are an abuse of process and should be struck out for non-disclosure of material facts

Holding

The Court did not strike out the suit or the application; it directed the parties to the full hearing of the main claim

Reasoning

The Respondent argued the Claimant concealed her offer of mutual separation, her failure to appeal, and misstated her salary, relying on authority that ex parte orders obtained by non-disclosure may be set aside. The Claimant maintained there were triable issues resolvable only at full trial. The Court, exercising its discretion, declined to strike out and instead set aside the interim orders and sent the parties to trial.

p. 4

Legal principles established

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  • Interlocutory reinstatement is a substantive remedy granted only in exceptional circumstances after a full trial
  • Ex parte orders obtained on non-disclosure of material facts may be set aside
  • The Court will not confirm interlocutory injunctive relief where the applicant retains an avenue of redress at full trial

Court orders

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  1. 1.Set aside the injunctive orders in place (the ex parte orders of 4th May 2020)
  2. 2.Directed the Parties to proceed with the Main Claim
  3. 3.Costs in the cause

Authorities

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Legislation

  • Employment ActSection 41
  • Civil Procedure RulesOrder 2 Rule 15
  • Civil Procedure RulesOrder 19 Rule 6
  • Employment and Labour Relations Rules 2016Rule 17(5)
  • Industrial Court (Procedure) RulesRule 16(3) (as quoted in Abdi Mohammed Daib v Kenya Ports Authority)

Cases cited (6)

  • Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others
    [2009] eKLR
  • Uhuru Highway Development Limited vs Central Bank of Kenya & others
    [1995] eKLR
  • The King vs The General Commissioners for the Purposes of the Income Tax for the District of Kensington
    [1917] 1 K.B 486
  • Joan Wairimu Wanyutu vs. Social Service League, MP Shah Hospital
    [2019] eKLR
  • Rajab Barasa & 4 others v Kenya Meat Commission
    [2016] eKLR
  • Abdi Mohammed Daib v Kenya Ports Authority
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment dispute (Employment and Labour Relations Rules 2016, Rule 17(5) raised by the Respondent)

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, "Rosemary Ndinda Ndivo v Henkel Kenya Limited [2020] KEELRC 489 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/489/eng@2020-09-16

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