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ELRCDismissedNot stated in judgment· [2021] KEELRC 639 (KLR)

Fredrick Ochieng Olendo v John Kipkorir Chumo & another [2021] KEELRC 639 (KLR)

Employment and Labour Relations Court
28 October 2021
LNLINNET NDOLO
1,172 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A worker seeking to stop his replacement lost because he couldn't prove he was actually employed, showing courts won't grant emergency orders on disputed facts.

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 by Linnet Ndolo J, delivered virtually on 28th October 2021. The Claimant's application dated 24th February 2021 sought a temporary injunction restraining the 1st Respondent, John Kipkorir Chumo, from performing his duties; an order preserving his employment as Administrator/Accounting Officer of the National Environmental Complaints Committee (NECC) with payment of salary; an order directing the Cabinet Secretary, Ministry of Environment and Forestry, and the Board of EMCA to enforce court orders; and a declaration that he is an employee of NECC. The Respondents, through a replying affidavit sworn by Chumo, opposed the application, contending that NECC is a department of NEMA established under Section 31 of EMCA, is not a body corporate and cannot employ staff; that the Claimant's 2014 gazetted appointment for a three-year term lapsed with the 2015 amendment of EMCA and on 29th April 2017; that Chumo, the Council of Governors' nominee, took over the Secretary/CEO role; and that the 29th September 2016 letter relied on by the Claimant is defective as it specifies no salary, term or benefits, his retention being on daily allowance. Applying the Giella v Cassman Brown conditions, the court held that the existence of the employment relationship was highly contested and could not be determined at the interlocutory stage, that no prima facie case was established, that irreparable harm was not demonstrated, and that the balance of convenience did not favour the Claimant. The application was declined with costs in the cause.

Key legal issues

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01

Whether the Claimant established a prima facie case for temporary injunction

Holding

No prima facie case established because the alleged employment relationship, on which all prayers depend, is highly contested

Reasoning

The Claimant relied on a letter dated 29th September 2016 as proof of employment, while the Respondents maintained no employment relationship existed and that NECC lacks capacity to employ anyone as it is not a body corporate. Because the prayers were premised on the disputed employment relationship, the court held that this threshold issue could not be resolved on the interlocutory application and thus no prima facie case was made out.

p. 2
02

Irreparable harm and balance of convenience

Holding

Neither irreparable harm nor balance of convenience was demonstrated in the Claimant's favour

Reasoning

The court found that the Claimant failed to demonstrate that damages would not adequately compensate him if the orders were not granted. It further held that the balance of convenience did not tilt in his favour. Having failed on all three Giella limbs, the application was bound to fail and was declined with costs in the cause.

p. 3

Legal principles established

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  • An interlocutory application must satisfy the Giella v Cassman Brown conditions: prima facie case with probability of success, irreparable harm not compensable by damages, and balance of convenience
  • Contested existence of an employment relationship cannot be determined at the interlocutory stage

Court orders

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  1. 1.The Claimant's application dated 24th February 2021 is declined
  2. 2.Costs in the cause

Authorities

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Legislation

  • Environmental Management and Coordination Act (EMCA)Section 31
  • Environmental Management and Coordination Act (EMCA)Sections 31-35
  • Environmental Management and Coordination Act (EMCA), 1999Public Complaints Committee provisions

Cases cited (1)

  • Giella v Cassman Brown & Co Ltd
    (1973) E.A
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction (interlocutory application within a suit); no specific provision stated in the judgment

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, "Fredrick Ochieng Olendo v John Kipkorir Chumo & another [2021] KEELRC 639 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/639/eng@2021-09-28

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