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ELRCOtherCause No E458 of 2021· [2021] KEELRC 953 (KLR)

Monica Tindi Waga v Heinrich Boll Stiftung [2021] KEELRC 953 (KLR)

Employment and Labour Relations Court
Invalid Date
NSNot stated
3,128 words in judgment
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The bottom line

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A Kenyan employment court refused an ex-employee's bid to stop her old employer hiring, because she never asked for that order in her original claim.

What this practically means

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Executive summary

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The Claimant, formerly employed as Finance & Administration Coordinator, moved the Employment and Labour Relations Court by notice of motion dated 8th June 2021 seeking interim orders restraining the Respondent from recruiting anyone to fill her former position pending hearing and determination of her suit for unfair and unlawful termination, which she said occurred without reasons, warning letter or disciplinary hearing while she was recuperating from COVID-19. The Respondent, a donor-funded charitable organisation funded by the German government, opposed the motion, arguing the orders would cripple its core finance function and donor reporting obligations, that the position was occupied in acting capacity, and that damages would adequately compensate the Claimant, who had quantified her claim. Both parties filed written submissions. The Respondent raised a threshold objection under Rule 17(5) of the ELRC (Procedure) Rules 2016, relying on Shadrack Musyoka v Middle East Bank Kenya Limited, that interim injunction cannot be granted where no injunction is sought in the suit itself; the Claimant's memorandum of claim did not seek such relief. It also relied on Giella v Cassman Brown, Mrao Ltd v First American Bank and Nguruman Limited to contend absence of a prima facie case and of irreparable injury. The court agreed that the Claimant, being bound by her pleadings, could not obtain relief she had precluded in her own claim, and further noted the position was filled in acting capacity and the matter would not be determined within the 3-year statutory period for reinstatement. The interlocutory relief was therefore not granted. The excerpt does not disclose the judge's name, date of judgment, full final orders, or costs.

Key legal issues

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01

Competence of an interim injunction application where no injunction is sought in the pleadings

Holding

Injunction relief cannot be granted where the claimant did not plead it in the memorandum of claim

Reasoning

The Respondent relied on Shadrack Musyoka v Middle East Bank Kenya Ltd holding that Rule 17(5) permits interim injunction only where injunction is sought in the suit. The court agreed, holding the Claimant bound by pleadings.

p. 3
02

Reinstatement feasibility

Holding

Reinstatement not available as the position is filled in acting capacity and the case will not be heard and determined within the 3-year statutory period

Reasoning

The court noted Section 12(3) ELRC Act limits reinstatement to cases heard and determined within 3 years; the position was occupied in acting capacity.

p. 4

Legal principles established

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  • A party is bound by their pleadings and cannot mount interlocutory relief not sought in the suit

Court orders

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  1. 1.Interim relief sought (restraint on filling the Finance & Administration Coordinator position) not granted, as it was not pleaded in the memorandum of claim and the position was filled in acting capacity with reinstatement barred by the 3-year rule

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Employment ActNot stated
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 17(5)
  • Employment and Labour Relations Court ActSection 12(3)
  • Oaths and Statutory Declarations ActNot stated

Cases cited (10)

  • Stephen Mbugua Chege v Nairobi City Water & Sewerage Company
    [2017] eKLR
  • Giella v Cassman Brown & Company Limited
    [1973] EA 358
  • Hedwig Nyalwal v Kenya Institute of Supplies Management
    [2020] KLR
  • Shadrack Musyoka v Middle East Bank Kenya Limited
    [2021] eKLR
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    [2003] eKLR
  • Thomas Ekamais Akuja v Turkana University College Council
    [2021] eKLR
  • Rose Sang v Siginon Group Limited
    [2020] eKLR
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Stars & Garters Restaurant & Another v National Bank of Kenya Limited
    [2019] eKLR
  • Guardian Bank Limited v Jambo Biscuits Kenya Limited
    [2014] eKLR
Jurisdiction invoked
Section 12(3) Employment and Labour Relations Court Act; Rule 17(5) Employment and Labour Relations Court (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, "Monica Tindi Waga v Heinrich Boll Stiftung [2021] KEELRC 953 (KLR)", Case Analysis (Not ). Cause No E458 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/953/eng@2021-09-20

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