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ELRCDismissedNot stated in the extract of the ruling· [2021] KEELRC 1067 (KLR)

Gabriel Mukuria Muturi v Kenya Forestry Research Institute [2021] KEELRC 1067 (KLR)

Employment and Labour Relations Court
18 August 2021
OMOnesmus Makau
1,592 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to preserve a dismissed employee's job because money could compensate him, even though his dismissal looked procedurally unfair.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi (Onesmus Makau, J) on the claimant's application dated 22.2.2021. The claimant, formerly employed by the respondent for 34 years, was dismissed on 14.8.2020 and sued on 4.12.2020 for unfair termination. When the respondent advertised his position as Deputy Director Forest Biodiversity and Environment Management, he sought interlocutory injunctions to preserve the position and restrain its filling, relying on section 67 of the Public Service Commission Regulations 2020, which he said barred substantive filling of a position pending conclusion of a disciplinary process. The respondent opposed, arguing valid dismissal under a fair procedure, absence of irreparable harm since damages would suffice, and reliance on the interim orders already in place. Both parties relied on the Giella and Mrao principles. The court found the claimant had established a prima facie case: the termination letter suggested no disciplinary hearing under section 41 of the Employment Act, a breach of a protected legal right. However, the second limb failed - any loss was quantifiable and compensable by damages under sections 49 and 50 of the Employment Act, the claimant having himself quantified his claim at Kshs. 55,832,063.88. With no doubt on irreparable harm, balance of convenience did not arise. The application was dismissed with costs in the cause. The ruling was delivered online pursuant to Covid-19 measures and the Chief Justice's directions of 15 April 2020, with the parties' consent.

Key legal issues

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01

Prima facie case

Holding

The claimant established a prima facie case with a probability of success because the termination letter suggested no disciplinary hearing was conducted as required by section 41 of the Employment Act

Reasoning

The applicant alleged unfair termination for lack of valid reason and unfair procedure. From the termination letter, the court observed a possibility that no disciplinary hearing was conducted under section 41 of the Employment Act. Relying on Postal Corporation of Kenya v Andrew K. Tanui and New Kenya Co-op Creameries v Olga Auma Adede, the court held the failure to give an oral hearing breaches a protected legal right calling for rebuttal at trial, satisfying the Mrao definition of a prima facie case.

p. 2
02

Irreparable harm

Holding

No irreparable harm established; the loss is compensable by damages

Reasoning

Although employment matters are emotive, the harm alleged was unfair termination of the contract, whose loss is quantifiable. The claimant himself had quantified his damages at Kshs. 55,832,063.88 in the suit, demonstrating that damages under sections 49 and 50 of the Employment Act would adequately compensate him, so the second Giella limb failed.

p. 3
03

Balance of convenience

Holding

Not considered since the court had no doubt on irreparable harm

Reasoning

The court stated that balance of convenience is considered only where it is in doubt as to which party stands to suffer greater harm. Having found no doubt that the applicant would not suffer irreparable harm, the court declined to determine this limb.

p. 3

Legal principles established

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  • Failure to accord an employee an oral hearing under section 41 of the Employment Act amounts to breach of a legal right protected by the law
  • Irreparable harm refers to injury which cannot be quantified in monetary value or adequately compensated by damages

Court orders

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  1. 1.Application dated 22.2.2021 dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Constitution of Kenyageneral (privileges of employees)
  • Employment Actsections 41, 49 and 50
  • Public Service Commission Regulations 2020section 67
  • ELRC (Procedure) Rules, 2016Rules 17(5) and 28(3)

Cases cited (6)

  • Giella Vs Cessman Brown
    [1973] EA 358
  • Mrao Vs First American Bank of Kenya
    [2003] KLR 125
  • Stephen Mbugua Chege Vs Nairobi City Water & Sewerage Co Ltd
    [2017] eKLR
  • Jediah M. Mwarania Vs Kenya Reinsurance Corporation Ltd
    2016 eKLR
  • Postal Corporation of Kenya v Andrew K. Tanui
    [2019] eKLR
  • New Kenya Co-op Creameries Limited v Olga Auma Adede
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction invoked under Rule 17(5) of the ELRC (Procedure) Rules, 2016 in an employment dispute

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, "Gabriel Mukuria Muturi v Kenya Forestry Research Institute [2021] KEELRC 1067 (KLR)", Case Analysis (2021). Not stated in the extract of the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1067/eng@2021-08-18

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