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ELRCDismissedNotice of Motion dated 30th October, 2020 (within Memorandum of Claim)· [2021] KEELRC 1494 (KLR)

Solomon Gichung’wa Njuguna v Sybrin Kenya [2021] KEELRC 1494 (KLR)

Employment and Labour Relations Court
18 February 2021
MMM. Mbaru
1,540 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to reinstate a suspended bank employee before trial, confirming reinstatement is a final remedy that requires a full hearing.

What this practically means

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Executive summary

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The claimant, employed by the respondent on 30th November, 2010 as a system implementation and support officer, was suspended by letter dated 30th May, 2011 over allegations of fraud pending the outcome of criminal investigations and charges in Criminal Case No.713 of 2011 (Republic v Solomon Gichungwa Njuguna & others), in which he was acquitted in December, 2019. He filed a Notice of Motion dated 30th October, 2020 seeking unconditional lifting of his suspension, immediate reinstatement, payment of withheld emoluments during suspension, and an injunction restraining termination, pending the hearing of the application and claim. He asserted a legitimate expectation of reinstatement upon acquittal and alleged he was blacklisted from banking-sector employment. The respondent, through the affidavit of its director Wilson Some, countered that the claimant deserted and repudiated his contract, having allegedly secured other employment with Radiant Digital Solutions and links to Gold Avenue Africa and Umeme City, businesses said to belong to his brother. The court, M. Mbaru J, held that reinstatement is a final, specific-performance-type remedy regulated under section 12(3)(vii) of the ELRC Act, section 49(4) of the Employment Act and Rule 17(10) of the ELRC Procedure Rules, and cannot issue on an interim basis. Disputes spanning over nine years, including alleged constructive unfair termination, required evidence at a full hearing. The application was not allowed at that instance; the claim was directed to be heard on priority, with directions for filing witness statements and documents within 14 days, closure of pleadings within 21 days, and allocation of a hearing date thereafter.

Key legal issues

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01

Whether reinstatement and payment of emoluments can be granted on an interim basis

Holding

No; reinstatement is a final order akin to specific performance, regulated under section 12(3)(vii) of the ELRC Act, section 49(4) of the Employment Act and Rule 17(10) of the ELRC Procedure Rules, and cannot issue in the interim

Reasoning

The court held that reinstatement is by nature a final remedy reserved for the conclusion of the claim. The disputes between the parties span over nine years, covering suspension, arrears and alleged constructive unfair termination. Deciding these on affidavit evidence alone would deprive the court of crucial and material evidence and cross-examination, and would not aid the course of justice.

p. 3
02

Whether the long-pending disputes should be resolved on the affidavits or at a full hearing

Holding

The matters should be interrogated at a full hearing to allow the court to be seized of all facts before issuing a final decision

Reasoning

While suspension is an administrative prerogative of the employer and the employer ought to respond once matters are addressed, the disputes here span over nine years. The claimant alleges continued suspension and non-payment; the respondent alleges desertion and other employment. These contested factual issues require evidence and examination that affidavits cannot supply.

p. 3

Legal principles established

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  • Reinstatement is a final remedy regulated by statute and should not be granted on an interim basis before a full hearing
  • Allegations of constructive and unfair termination require the taking of evidence before a court can make a finding

Court orders

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  1. 1.The application by the claimant dated 30th October, 2020 shall not be allowed at this instance, save the claim shall be heard on priority
  2. 2.The parties are allowed the next 14 days to file their witness statements and list of documents to be relied upon at the hearing
  3. 3.Pleadings to close within 21 days
  4. 4.Upon compliance with (a) and (b) a hearing date shall be allocated at the registry
Jurisdiction invoked
Employment and Labour Relations Court Act, 2011, section 12; Employment Act, 2007, section 49(4); Employment and Labour Relations Court (Procedure) Rules, 2016, Rule 17(10)

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, "Solomon Gichung’wa Njuguna v Sybrin Kenya [2021] KEELRC 1494 (KLR)", Case Analysis (2021). Notice of Motion dated 30th October, 2020 (within Memorandum of Claim). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1494/eng@2021-02-18

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