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ELRCDismissedNot stated in the extract· [2021] KEELRC 1128 (KLR)

Rose Njambi Mwangi v Point East Africa Limited [2021] KEELRC 1128 (KLR)

Employment and Labour Relations Court
30 July 2021
OMOnesmus N. Makau
2,541 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 ruled that reinstatement after dismissal is a final remedy decided at full trial, not a temporary fix granted early in a case.

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 (Makau J) on a Notice of Motion dated 15.9.2020 brought by a former Procurement Specialist of the Respondent following termination of her employment on grounds of redundancy effective 19.9.2020. She sought a stay of the termination letter, interim reinstatement in the alternative, and payment of withheld salary for April to September 2020, contending that the redundancy violated section 40 of the Employment Act and was discriminatory on grounds of pregnancy contrary to Article 27 of the Constitution and ILO Convention 183. The Respondent, through its Global Head of Human Resource, opposed the application, asserting that the suit was premature, that the salary reductions and unpaid leave were consented to as Covid-19 business measures, that the redundancy was genuine due to diminished business volumes, that it complied with section 40, and that terminal dues had been paid. The court framed two issues: whether to reinstate the Applicant interlocutorily and whether to order payment of withheld dues. Applying the Court of Appeal decision in Kenya Tea Growers Association v Kenya Plantation & Agricultural Workers Union, the court held that reinstatement is a substantive remedy not normally granted at the interlocutory stage, and found no good cause or exceptional circumstances. It also declined the payment of withheld salary, holding that the contentious issues of unilateral contract variation should be fully adjudicated at trial. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether interlocutory reinstatement should be granted

Holding

Reinstatement is a substantive remedy; it was declined as no good cause or exceptional circumstances were shown

Reasoning

Relying on section 49(3)(a) of the Employment Act, section 12(3)(vii) of the ELRC Act, and the Court of Appeal decision in Kenya Tea Growers Association v Kenya Plantation & Agricultural Workers Union, the court held that reinstatement is ordinarily a remedy granted after full hearing. The Applicant failed to demonstrate exceptional circumstances or practicability at the interlocutory stage.

p. 3
02

Whether withheld salary should be paid at the interlocutory stage

Holding

Payment of withheld dues was declined as the underlying issues are contentious and should be adjudicated at trial

Reasoning

The claimed payments relate to section 49(1)(b) of the Employment Act and involve contentious questions of unilateral variation of contract contrary to section 10(5) of the Employment Act. The court held these must be fully adjudicated before any payment order to avoid prejudicing the respondent. The application was dismissed with costs in the cause.

p. 4

Legal principles established

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  • Interlocutory reinstatement should only issue for good cause or exceptional circumstances and if practicable
  • Reinstatement is a substantive remedy, not a temporary relief, and should normally be granted upon full hearing

Court orders

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  1. 1.The application (Notice of Motion dated 15.9.2020) is dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Constitution of Kenya 2010Article 27
  • Constitution of Kenya 2010Article 27(5)
  • Constitution of Kenya 2010Article 41
  • Employment Act 2007Section 5
  • Employment Act 2007Section 40(1)(b)
  • Employment Act 2007Section 10
  • Employment Act 2007Section 10(5)
  • Employment Act 2007Section 49 (including 49(1)(b), 49(3)(a), 49(4)(c) and (d))
  • Employment and Labour Relations Court ActSection 12(3)(vii)
  • Civil Procedure ActSection 27(1)
  • ELRC Procedure RulesRule 28(3)
  • International Labour Organisation Convention 183 of 2000 on Employment Protection & Non-discriminationNot stated

Cases cited (14)

  • Jane Khalechi v Oxford University Press EA Limited
    [2013] eKLR
  • GMV v Bank of Africa Kenya Limited
    [2013] eKLR
  • Standard Group Limited v Jenny Luesby
    [2018] eKLR
  • Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 Others
    [2014] eKLR
  • Cecilia Karuru Ngayu v Barclays Bank of Kenya Limited & ano
    [2016] eKLR
  • Venansio Mbatau Kariuki v Governor, County Government of Nyandarua & 2 Others
    [2019] eKLR
  • Republic v Kenya Medical Training College & ano ex-parte Kenya Universities and Colleges Central Placement Service
    [2015] eKLR
  • Gotv Kenya Ltd v Royal Media Services Ltd & 2 Others
    [2015] eKLR
  • The King v The General Commissioners for the purposes of Income Tax Acts for the District of Kensington: Exparte Princess Edmond De Pligac
    (1971) 1 KB 486
  • Edgar Maingi Mwinzi v Total Kenya Limited
    [2020] eKLR
  • Emmanuel Wambua Muthusi & 6 Others v Khoja Shia Ithna Ashari Education Board t/a Jaffery Academy
    [2020] eKLR
  • Geoffrey Mworia v Water Resources Management Authority and 2 Others
    [2015] eKLR
  • Kenya Tea Growers Association v Kenya Plantation & Agricultural Workers Union
    [2018] eKLR
  • Alfred Nyungu Kimungii v. Bomas of Kenya
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act and the Employment Act (interlocutory application in a pending employment claim)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Rose Njambi Mwangi v Point East Africa Limited [2021] KEELRC 1128 (KLR)", Case Analysis (2021). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1128/eng@2021-07-30

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