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ELRCDismissedELRC Cause (Nairobi) – Application dated 13th May, 2021 (cause number not stated in the judgment)· [2021] KEELRC 1450 (KLR)

Kenya Union of Domestic, Hotels, Educational Institutions, Hospital and Allied Workers (Kudheiha) v Nairobi Hospital [2021] KEELRC 1450 (KLR)

Employment and Labour Relations Court
21 June 2021
MMM. Mbaru
2,373 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 stop completed redundancies at Nairobi Hospital, ruling that reinstating workers is a final remedy that cannot be granted before a full hearing.

What this practically means

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Executive summary

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The claimant union, KUDHEIHA, moved the Employment and Labour Relations Court at Nairobi by application dated 13th May, 2021 seeking interim orders staying an ongoing staff rationalisation/redundancy exercise by The Nairobi Hospital affecting ten named union members (grievants) notified by letters dated 28th April, 2021, effective 30th April, 2021. The union argued the work performed by the grievants was not superfluous, that new recruitments were under way under the guise of the COVID-19 pandemic, that there was no consultation, and that the grievants were not heard contrary to sections 40 and 41 of the Employment Act. The respondent opposed, contending the suit was sub judice given pending ELRC Cause No.E273 of 2021 between the same parties; that the redundancy process had already concluded and could not be stayed; and that granting the orders would amount to reinstatement at an interlocutory stage. The court held there was no matter of sub judice because the cause of action differed – the earlier suit disputed an intended restructuring, while this suit concerned a rationalisation already effected, apparently against different grievants. On the injunction, the court found termination had taken effect and that staying the process would amount to specific performance and reinstatement, a final remedy barred at an interlocutory stage under section 12(3) of the ELRC Court Act, section 49(4) of the Employment Act and Rule 16(10) of the ELRC (Procedure) Rules. It observed the one-day notice fell short of the one month required by section 40 but declined to determine the merits. The application was dismissed with directions that both files be placed together for priority hearing before the same Judge, with timetabled pleadings and costs in the cause.

Key legal issues

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Sub judice

Holding

The suit is not sub judice because the cause of action differs: the earlier suit (ELRC No.E273 of 2021) concerned the intention to undertake rationalisation, whereas this suit concerns a rationalisation that has already taken effect against different grievants

Reasoning

The respondent argued the suit contravened section 6 of the Civil Procedure Act given the pending ELRC Cause No.E273 of 2021. The court held that although the parties are the same, the cause of action is different – the earlier suit disputed an intended restructuring, while the grievants here had already lost employment through the notice of 28th April, 2021. Whether the grievants are the same individuals can only be addressed at a full hearing.

p. 3
02

Injunction to stay redundancy

Holding

Refused at the interlocutory stage because the redundancy notice had taken effect and granting the stay would amount to specific performance/reinstatement, a final remedy under section 49(4) of the Employment Act and section 12(3) of the ELRC Court Act

Reasoning

The grievants' employment had been terminated on 30th April, 2021. The lawfulness of the process must be gone into at a full hearing. The claimant also failed to show recruitment of replacements: the advert annexed related to Front Office Assistants, positions unrelated to the grievants who worked in catering and food production. However, the court noted the notice was only for one day, well short of the one month required by section 40.

p. 3

Legal principles established

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  • An interlocutory stay of a completed redundancy amounts to an order of reinstatement, which is a final remedy that cannot issue before full hearing of whether section 40 of the Employment Act was breached
  • The sub judice rule applies where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties, such that a final decision in the earlier suit would operate as res judicata in the subsequent one

Court orders

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  1. 1.The file shall be placed together with ELRC Cause No.E273 of 2021 for hearing on priority basis
  2. 2.The respondent to file defence within 14 days and serve the claimant
  3. 3.The claimant to have a right of reply within 7 days upon service
  4. 4.Pleadings to close within 21 days from the date of the order
  5. 5.Parties to attend before the Deputy Registrar on 12th July, 2021 for allocation of a hearing date on priority basis
  6. 6.Costs shall be in the cause
Jurisdiction invoked
Employment and Labour Relations Court Act, 2011, section 12

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, "Kenya Union of Domestic, Hotels, Educational Institutions, Hospital and Allied Workers (Kudheiha) v Nairobi Hospital [2021] KEELRC 1450 (KLR)", Case Analysis (2021). ELRC Cause (Nairobi) – Application dated 13th May, 2021 (cause number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1450/eng@2021-06-21

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