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ELRCPartially AllowedCause at Nairobi, Notice of Motion dated 19th February 2021· [2021] KEELRC 1525 (KLR)

James Odera v Concord Savings and Credit Cooperative Society Limited [2021] KEELRC 1525 (KLR)

Employment and Labour Relations Court
14 April 2021
NMNzioki wa Makau
3,376 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that a reinstatement order dies when the fixed-term contract it was based on expires.

What this practically means

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Executive summary

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The Sacco (Respondent/Applicant), through its Chairperson Rosemary Aseka, moved the Court by Notice of Motion dated 19th February 2021 under Rule 17(5), (6) and (7) of the ELRC (Procedure) Rules 2016 seeking to discharge, vary or set aside the interlocutory reinstatement order of 3rd March 2020 made by Radido J, which had reinstated James Odera as CEO pending hearing of his claim. The Sacco argued that the Claimant's 3-year contract expired on 31st January 2021 and was not renewed by a board resolution of 25th November 2020, that the Claimant refused to hand over, assaulted the Chairperson, hoarded computer passwords and misused the court order to intimidate and oppress the Sacco. The Claimant opposed, contending the board lacked quorum because four members had been enjoined from acting, that Stephen Kisaka was improperly counted towards quorum, and that the board resolutions were void. He filed no submissions. The Court, Nzioki wa Makau J, applied Edwin Gichangi v Kenya Cultural Centre, holding that a reinstatement order anchored on a fixed-term contract does not rewrite the contract and cannot survive beyond its expiry. Since the contract expired in January 2021, the substratum of the reinstatement order had ceased to exist. Applying Giella v Cassman Brown and Mrao, the Court found the balance of convenience favoured the Sacco. The application dated 19th February 2021 was granted with costs against the Claimant.

Key legal issues

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01

Whether the reinstatement order of 3rd March 2020 survived the expiry of the Claimant's contract

Holding

The order lapsed upon expiry of the contract in January 2021 and was discharged

Reasoning

Relying on Edwin Gichangi v Kenya Cultural Centre, the Court held that a reinstatement order preserving a contract does not rewrite the contract; where the contract upon which the order was anchored expires, the reinstatement order cannot logically survive beyond that expiry. The Claimant's 3-year contract expired on 31st January 2021, whittling away the substratum of the order.

p. 3
02

Whether the Respondent was entitled to an injunction restraining the Claimant from the premises

Holding

The Court found the balance of convenience favoured the Respondent/Applicant and granted the application

Reasoning

Applying the Giella v Cassman Brown threshold and the Mrao definition of a prima facie case, the Court opined that the balance of convenience tilted in favour of the Respondent/Applicant, and that cessation of the substratum of the reinstatement order was alone sufficient to discharge the order of 3rd March 2020.

p. 4

Legal principles established

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  • A reinstatement order anchored on a fixed-term contract cannot logically survive beyond the expiry of that contract
  • An interlocutory injunction may be discharged where the substratum of the order ceases to exist

Court orders

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  1. 1.The interlocutory reinstatement order of 3rd March 2020 is discharged, the orders having lapsed on expiry of the Claimant's contract in January 2021
  2. 2.The Respondent/Applicant's application dated 19th February 2021 is granted
  3. 3.Costs of the application awarded against the Respondent (Claimant James Odera)

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 17(5), (6) and (7)

Cases cited (6)

  • Samuel Mwinami v Social Service League & another
    [2016] eKLR
  • Enock O Kinara v Postal Corporation of Kenya
    Cause No. 2202 of 2016
  • Wilson Tanui Barno & 2 others v Jeniffer Kositany
    [2015] eKLR
  • Edwin Gichangi v Kenya Cultural Centre
    [2019] eKLR
  • Giella v Cassman Brown & Co. Ltd
    [1973] E.A 358
  • Mrao Limited v First American of Kenya Limited & 2 others
    [2003] eKLR
Jurisdiction invoked
Rule 17(5), (6) and (7) of the Employment and Labour Relations Court (Procedure) Rules 2016

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, "James Odera v Concord Savings and Credit Cooperative Society Limited [2021] KEELRC 1525 (KLR)", Case Analysis (2021). Cause at Nairobi, Notice of Motion dated 19th February 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1525/eng@2021-04-14

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