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ELRCDismissedNot stated in the judgment· [2021] KEELRC 669 (KLR)

Mohamed Bayaan Adan v Kenya Meat Commission [2021] KEELRC 669 (KLR)

Employment and Labour Relations Court
14 October 2021
MMM. Mbaru
1,591 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 declined to reinstate a former ICT Manager at an early stage because his fixed-term contract had already lapsed, reserving all questions for full trial.

What this practically means

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Executive summary

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The claimant, formerly ICT Manager of the respondent, brought an application dated 17th September, 2021 under sections 43 and 45 of the Employment Act and Articles 23, 41 and 47 of the Constitution, seeking stay of the respondent's decision of 14th April, 2021, reinstatement as ICT Manager, and an order restraining the respondent from advertising or assigning the duties of that position pending full hearing. He argued that after EACC investigations into alleged irregular recruitment, the respondent kept him on short 3-month contracts contrary to the human resource manual, and that the non-renewal of his contract was unfair and without due process. The respondent, through the affidavit of Albert Nyauntu, opposed the application, contending that the claimant served on successive fixed-term contracts, that the board resolved on 23rd March, 2021 not to renew the contract which then lapsed on its terms, that an internal appeal upheld the lawful lapse, that terminal dues were paid, and that the application was an abuse of process. The court, M. Mbaru J, held that reinstatement requires specific performance and is guided by section 49(4) of the Employment Act, section 12(3) of the ELRC Act and Rule 17(10) of the ELRC (Procedure) Rules, which bars ex parte reinstatement orders. Since the claimant's 3-month contract lapsed on 14th April, 2021, staying the decision or reinstating him at that stage would deny the court material evidence available at full trial and deny the respondent a key operational function. The court declined the application without determining the merits of the fairness of the termination, awarding costs in the cause.

Key legal issues

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01

Whether reinstatement and stay could issue at an interlocutory stage

Holding

No. Reinstatement is a remedy of specific performance governed by section 49(4) Employment Act, section 12(3) ELRC Act and Rule 17(10) ELRC (Procedure) Rules; granting it, or staying the non-renewal of a lapsed fixed-term contract, before full trial would deprive the court of material evidence and the respondent of a key operational function.

Reasoning

The court noted the claimant's own admission that his 3-month term contract lapsed on 14th April, 2021. Restoring him would revive a lapsed term of undefined duration. Citing the Court of Appeal in Kenya Airways Ltd v Aviation & Allied Workers Union, reinstatement requires consideration of practicability and the exceptional-circumstances rule for specific performance. Rule 17(10) bars ex parte reinstatement orders. Fairness of the termination was left for full trial.

p. 2
02

Whether the fairness of the non-renewal/termination should be determined on the application

Holding

No; the merits of the termination were expressly left for the full trial

Reasoning

The court held it would not go into the merits of the alleged unfair termination on an interlocutory application, since determining stay and reinstatement prematurely would foreclose evidence ordinarily available at trial. The application was confined to whether the interim orders sought were justifiable at that stage.

p. 2

Legal principles established

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  • Reinstatement requires specific performance and should not be granted except in very exceptional circumstances, guided by section 49(4) of the Employment Act
  • The court will not grant reinstatement or restraints on recruitment at an interlocutory stage where the term contract has lapsed, as this would deprive the court of evidence available at full trial

Court orders

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  1. 1.Application dated 17th September, 2021 declined
  2. 2.Costs in the cause
Jurisdiction invoked
Sections 43, 45(2) and (5) of the Employment Act; Articles 23, 41 and 47 of the Constitution; Employment and Labour Relations Court Act and ELRC (Procedure) Rules, 2016

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Mohamed Bayaan Adan v Kenya Meat Commission [2021] KEELRC 669 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/669/eng@2021-10-14

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