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ELRCDismissedPetition (Notice of Motion dated 19th July 2021), Employment and Labour Relations Court, Nairobi· [2021] KEELRC 1079 (KLR)

Florence Wairimu Muturi v Nelson Andayi Havi & 11 others; Council of the Law Society of Kenya & 9 others(Interested Parties) [2021] KEELRC 1079 (KLR)

Employment and Labour Relations Court
29 July 2021
NMNzioki wa Makau
7,127 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court refused to reinstate a dismissed Law Society of Kenya executive for now, saying money compensation is enough while her main case is heard.

What this practically means

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Executive summary

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The Petitioner, formerly Deputy Secretary and Director of Compliance and Ethics at the Law Society of Kenya, moved the Employment and Labour Relations Court by Notice of Motion dated 19th July 2021 seeking conservatory orders staying her summary dismissal of 9th July 2021, staying a Daily Nation advertisement of 13th July 2021 inviting applications for her former position, and restraining the Respondents from replacing her or withholding her salary and benefits pending hearing of her Petition. She argued, supported by the Interested Parties, that she was dismissed without notice or hearing contrary to Articles 41 and 47 of the Constitution and Sections 41 and 44 of the Employment Act and the LSK Human Resource Manual, that the Respondents defied interim orders of 19th July 2021 by proceeding to interview and recruit a replacement, and that damages from members' funds would not be an adequate remedy. The Respondents opposed, contending the dismissal followed the members' resolution of 26th June 2021, that the Petitioner was insubordinate, that summary dismissal under Section 44 required no hearing, that damages were adequate, and that the position had already been filled. Applying the Giella v Cassman Brown test as restated in Nguruman Limited v Jan Bonde Nielsen, the court found a prima facie case was established but held that damages under Section 49 of the Employment Act and constitutional remedies would be adequate, and that the balance of convenience tilted heavily against relief since the position had been competitively filled. The motion was dismissed with no order as to costs, and the Petition was directed to be mentioned on 21st September 2021.

Key legal issues

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01

Whether the Petitioner established a prima facie case

Holding

Yes - a prima facie case was established because the Petitioner asserted she was not heard and the Respondents' Replying Affidavit suggested a possible misstep in the process

Reasoning

The court found, without going into the merits, that the Petitioner's assertion that she was not heard, coupled with indications in the 2nd Respondent's affidavit of a misstep in the process, sufficed to establish a prima facie case with a probability of success for interlocutory purposes.

p. 7
02

Whether damages would be an adequate remedy

Holding

Damages would be adequate; the Petitioner failed the second limb

Reasoning

The court held that both constitutional remedies for rights violations and Section 49 of the Employment Act provide compensatory remedies sufficient for the alleged infringement and termination, so irreparable injury was not demonstrated.

p. 7
03

Balance of convenience

Holding

It tilted heavily against granting relief because the position had already been competitively filled

Reasoning

Given that recruitment had taken place on 23rd July 2021 and a replacement retained, the court found the balance of convenience weighed against the conservatory orders sought.

p. 7
04

Whether the motion surmounted the cumulative Giella/Nguruman test

Holding

It did not; the motion was dismissed

Reasoning

Having failed the second and third limbs despite establishing a prima facie case, the Petitioner's motion could not succeed under the sequential test.

p. 7

Legal principles established

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  • The three Giella v Cassman Brown conditions for interlocutory injunctions must be surmounted sequentially, without leap-frogging
  • If damages recoverable in law are an adequate remedy and the respondent is capable of paying, no interlocutory injunction should normally be granted

Court orders

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  1. 1.The Petitioner's Notice of Motion dated 19th July 2021 is dismissed
  2. 2.No order as to costs
  3. 3.The Petition to be mentioned in the new term on 21st September 2021 to take directions on its disposal

Authorities

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Legislation

  • Constitution of KenyaArticle 3
  • Constitution of KenyaArticle 10
  • Constitution of KenyaArticle 41
  • Constitution of KenyaArticle 47
  • Employment ActSections 10, 12, 26, 41, 41(2), 44, 44(4)(c) and (e), 49
  • Law Society of Kenya Act 2014Sections 4, 16, 26, 27, 27(1), 27(2), 27(3)

Cases cited (14)

  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others
    [2014] eKLR
  • Giella v Cassman Brown
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Mercy Kalondu Wambua v Nelson Havi
    ELRC Petition E090 of 2020
  • Board of Management Buruburu v Director City County
  • Okiya Omtatah Okoiti v Cabinet Secretary Interior
    [2019] eKLR
  • Sebastian Wanzala v. Security Services
    [2014] eKLR
  • Byron v Cotton
    [1914] 1 CH 895
  • Ameja Zele Moi v County of Baringo
  • Attorney General v Andrew Kiplimo Sang
  • Rift Valley Railways v. Kenya Railways
  • Bryan Khaemba v Chief Justice
  • KRA v Daniel Waithaka Gitahi
  • Irene Echakara
Jurisdiction invoked
Constitution (Article 41 fair labour practices and Article 47 fair administrative action) and the Employment Act; original employment and labour relations jurisdiction of the ELRC

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, "Florence Wairimu Muturi v Nelson Andayi Havi & 11 others; Council of the Law Society of Kenya & 9 others(Interested Parties) [2021] KEELRC 1079 (KLR)", Case Analysis (2021). Petition (Notice of Motion dated 19th July 2021), Employment and Labour Relations Court, Nairobi. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1079/eng@2021-07-29

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