Law Society of Kenya v Chairman, Nairobi Metropolitan Area Council & 3 others; Mary Waithigieni Chege & 2 others (Interested Parties) [2021] KEELRC 1364 (KLR)
The bottom line
#Kenya's Employment Court kept NAMATA board members in office, ruling that even a strong case isn't enough for an injunction unless damages can't fix the harm.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over the challenge to board member appointments
The Court has jurisdiction; the dispute over appointment of board members after a competitive recruitment is an employment matter within Section 12 of the ELRC Act, and the Court may determine constitutional questions arising in such a suit.
The Respondents' preliminary objection relied on Republic v Karisa Chengo to argue the Court lacked jurisdiction absent an employer-employee relationship. The Court held Karisa Chengo had been misapplied; it only clarified the roles of the superior courts post-2010 and did not bar the ELRC from entertaining constitutional questions incidental to employment disputes. Appointment of board members following a competitive recruitment is an employment matter, so the suit was properly before the ELRC.
Whether the Applicant met the threshold for interim/conservatory relief
Although the Applicant demonstrated a prima facie case, it failed the irreparable injury and balance of convenience limbs of the Giella test, so the interim orders were refused.
Applying Giella v Cassman Brown, the Court accepted that the Applicant could probably succeed in overturning the appointments at the full hearing. However, the Applicant (the Law Society of Kenya) did not demonstrate that it would suffer irreparable injury not compensable by damages, and the balance of convenience tilted against interfering with the status quo. Having found damages adequate, the Court declined to grant injunctive relief and dismissed the motion.
Legal principles established
#- The Employment and Labour Relations Court is clothed with jurisdiction to deal with constitutional issues arising in a suit properly before it, and the Karisa Chengo decision does not bar it from doing so
- An interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages
Court orders
#- 1.The Preliminary Objection dated 15th March 2021 is dismissed as it is without any merit
- 2.The Applicant's Notice of Motion dated 1st March 2021 is dismissed
- 3.No order as to costs
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Law Society of Kenya v Chairman, Nairobi Metropolitan Area Council & 3 others; Mary Waithigieni Chege & 2 others (Interested Parties) [2021] KEELRC 1364 (KLR)", Case Analysis (2021). Petition (ELRC, Nairobi) - Notice of Motion dated 1st March 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1364/eng@2021-06-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.