Shadrack Musyoka v Middle East Bank Kenya Limited [2021] KEELRC 1871 (KLR)

Rule 17(5) permits an interim or temporary injunction in a suit where an injunction is sought. The literal interpretation is that interim or temporary injunction can only be sought and granted if the applicant has sought an injunction order in the suit itself. Since the claimant's suit did not plead injunction, the drafters intended to bar such a party from seeking an interlocutory injunction by motion. The court agreed with the respondent's preliminary objection and held the application incompetent.

The applicant alleged unfair termination: performance not properly measured, no mutually set targets, no hearing, no PIP. These factual allegations were not rebutted by any replying affidavit and therefore remain for trial. Applying the Mrao definition, the applicant had a genuine and arguable case with a right allegedly infringed calling for explanation or rebuttal, satisfying the first Giella limb.

The harm alleged was unfair termination, which the claimant himself quantified at Kshs 54,277,524, showing damages are an adequate remedy. Further, granting the application would amount to specific performance of the contract of service, which under section 49(d) of the Employment Act requires exceptional circumstances not demonstrated. The correspondence showed the relationship had become toxic and broken down, so the balance of convenience did not tilt in the applicant's favour.