Kenya Union of Journalists & 2 others v BBC East Afric Bureau & 2 others; Muhyadin Roble (Interested Party) [2021] KEELRC 576 (KLR)
The bottom line
#A Kenyan employment court ruled that interim orders that have expired cannot be revived and that reinstatement is only available after a full hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether lapsed interim orders could be extended
They could not; the orders lapsed on 31st May, 2021 and nothing remained to extend. The claimant's position was also internally contradictory, seeking extension while asking to withdraw the application on which the orders were founded.
The court found the claimant's prayers contradictory: extending interim orders while simultaneously seeking leave to withdraw the very application giving rise to them left the court without material on which the orders vested. The orders had lapsed by their terms on 31st May, 2021 when parties were directed to file submissions and take a date, and no extension was granted.
Whether the grievants could be reinstated or protected from the respondent's decision at the interlocutory stage
No. Reinstatement under Rule 17 of the ELRC (Procedure) Rules, 2016, read with section 49 of the Employment Act and section 12 of the ELRC Act, is a final remedy requiring a full hearing. The disciplinary decision of 12th August, 2021 (a warning and a termination) had taken effect and appeals were lodged.
The application was filed after the respondent's decision of 12th August, 2021 warning the 1st grievant and terminating the 2nd grievant's employment. Both grievants had appealed internally. The claimant, with knowledge of pending applications, did nothing to forestall the decision. Fairness and legality of the disciplinary process are matters for the full hearing.
Whether the DCI should be ordered to furnish statements and the investigation report
No. Criminal investigation procedures are foundationally different from internal disciplinary procedures within employment and labour relations, so such an order would not issue at this stage.
Although the Directorate of Criminal Investigations was outlined as a party, the court held that criminal investigation procedures differ fundamentally from internal employment disciplinary processes. The grievants did not dispute being issued show cause notices, attending a disciplinary hearing, and that an outcome issued on 12th August, 2021.
Legal principles established
#- An order of reinstatement of an employee can only issue as a final order following a full hearing of the main claim, not at the interlocutory stage
- Interim orders that have lapsed cannot be extended
Court orders
#- 1.Application dated 13th August, 2021 is dismissed with costs
- 2.Application dated 17th May, 2021 is marked withdrawn as overtaken by events
- Jurisdiction invoked
- Employment and Labour Relations Court (Procedure) Rules, 2016; Employment and Labour Relations Court Act, 2011; Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Journalists & 2 others v BBC East Afric Bureau & 2 others; Muhyadin Roble (Interested Party) [2021] KEELRC 576 (KLR)", Case Analysis (2021). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/576/eng@2021-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.