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ELRCDismissedNot stated in judgment· [2021] KEELRC 2088 (KLR)

Navin Chander Raina v Social Services League, Mp Shah Hospital [2021] KEELRC 2088 (KLR)

Employment and Labour Relations Court
19 February 2021
3,093 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The court determined two Notices of Motion dated 25th September 2020 and 16th October 2020 filed by the claimant, an Indian expatriate surgeon employed by the respondent hospital on a fixed-term contract that had been renewed and was due to lapse on 30th September 2020. The first application sought interim injunctions restraining termination of his employment and interference with his work permit and medical licence, alleging the decision not to renew his contract was retaliatory for his refusal to consent to a salary reduction on COVID-19 grounds. The court applied the Giella v Cassman Brown principles. It held the prayers had been overtaken by events since the contract had lapsed, that no prima facie case was established because the contract contained no renewal clause, that although irreparable harm might arise, the balance of convenience favoured refusal, and that interim reinstatement is a final-order remedy available only in exceptional circumstances. The interim orders of 30th September 2020 were vacated. The second application sought committal and fines of Kshs.10,000,000 against named officers for contempt of the orders of 30th September 2020. The court held that those orders merely required sustaining the existing employment relationship; since the contract lapsed on the date the orders were issued, the only position to be sustained was the 14th September 2020 consent for consultancy engagement. Applying the Mutitika v Baharini Farm standard - higher than balance of probabilities but not beyond reasonable doubt - the court found contempt unproved and dismissed the application with no order as to costs. Judgment delivered virtually at Nairobi on 19th February 2021 by Maureen Onyango J.

Key legal issues

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01

Prima facie case for interlocutory injunction

Holding

Not established because the fixed-term contract had lapsed and contained no renewal clause

Reasoning

The applicant was on a two-year contract (renewed once) expiring 30th September 2020. The claim that non-renewal was retaliatory or unlawful could not, on the face of the material, show an apparently infringed right, since a fixed-term contract lapses by effluxion of time and the contract contained no clause guaranteeing renewal. The court was not to hold a mini-trial of the merits.

p. 3
02

Irreparable harm

Holding

Court accepted irreparable harm may arise but this alone did not justify the injunction

Reasoning

The claimant, an Indian expatriate earning about Kshs.2,120,000 monthly as head of surgery, might suffer loss not compensable in damages. However, since the injunction prayers had been overtaken by expiry of the contract and no prima facie case existed, and the balance of convenience favoured the respondent, the remaining Giella limbs could not salvage the application.

p. 3
03

Balance of convenience and interim reinstatement

Holding

Balance of convenience militated against granting injunction orders

Reasoning

The claimant was no longer head of the respondent's department of surgery. Citing Anthony Omari Ongera v Teachers Service Commission, the court held that reinstatement at interlocutory stage is essentially a final, specific-performance type order grantable only in exceptional circumstances; none were shown here, so the balance of convenience favoured refusal.

p. 3
04

Contempt of court

Holding

Contempt not proved to the requisite standard; the 30th September orders only required sustaining the existing employment relationship

Reasoning

The orders of 30th September restrained interference with the employment relationship pending inter-partes hearing. The contract lapsed on the very day the orders issued, and the parties had on 14th September 2020 consented to a consultancy engagement thereafter. The court did not order a new contract; the applicant adduced no proof to the quasi-criminal standard that the respondent breached the orders or the consent.

p. 4

Legal principles established

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  • Interlocutory injunctions are governed by the Giella v Cassman Brown principles: prima facie case with probability of success, irreparable harm, and balance of convenience if in doubt.
  • The standard of proof in contempt/committal proceedings is higher than balance of probabilities but almost, not exactly, beyond reasonable doubt.
  • Reinstatement at the interlocutory stage is final in nature and should only issue in exceptional circumstances.

Court orders

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  1. 1.Application dated 25th September 2020 is dismissed and the interim orders granted on 30th September 2020 are vacated
  2. 2.Application dated 16th October 2020 (contempt/committal) is dismissed with no order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (11)

  • Giella v Cassman Brown
    [1973] EA 358
  • Mrao Limited v First American of Kenya limited & 2 others
    [2003] eKLR
  • Barclays Bank of Kenya Ltd v Banking, Insurance & Finance Union (Kenya)
    [2019] eKLR
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Habib Bank Ag Zurich v Eugene Marion Yakub
    C. A. No. 43 of 1982 (unreported)
  • Anthony Omari Ongera v Teachers Service Commission
    [2017] eKLR
  • Ahmed Aden Hire versus Natif Jama and County Government of Garissa
    Petition No. 121 of 2016
  • Johnson v Grant
    1923 SC 789 at 790
  • In the matter of Collins Odumba
    [2016] eKLR
  • Mutitika v Baharini Farm Limited
    [1985] KLR 229
  • Black's Law Dictionary (Ninth Edition)
Jurisdiction invoked
Article 159(2)(d), Article 48 of the Constitution and Section 1B of the Civil Procedure Act invoked for electronic delivery; substantive jurisdiction under employment law (not expressly pleaded)

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, "Navin Chander Raina v Social Services League, Mp Shah Hospital [2021] KEELRC 2088 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2088/eng@2021-02-19

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