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ELRCDismissedApplication dated 12th June, 2020· [2021] KEELRC 2177 (KLR)

Irene Itoto Echakara v Law Society of Kenya [2021] KEELRC 2177 (KLR)

Employment and Labour Relations Court
8 February 2021
MNMathews N. Nduma
1,027 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 freeze a job vacancy, ruling that stopping recruitment would effectively reinstate the employee before deciding if her dismissal was lawful.

What this practically means

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Executive summary

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The claimant, formerly employed as Program Officer (Parliamentary Affairs and Legislation), moved the court by Notice of Motion dated 12th June 2020 seeking an interlocutory injunction restraining the respondent from advertising, recruiting for or offering her position to anyone else pending determination of her claim. She asserted that her fixed-term contract, repeatedly extended, was varied by the respondent's Council decision of 9th April 2018 to permanent and pensionable terms with effect from 1st April 2018, which she accepted, yet the respondent terminated her employment on 15th May 2020 effective 30th May 2020 without valid reason or fair procedure, and that the termination was ultra vires as unsanctioned by Council. In her replying affidavit, the respondent's Secretary, Mercy Wambua, contended that the claimant only accepted the variation on 11th May 2020, two years after the offer, and that the delay was found inordinate and unacceptable by the Council's Staff Finance and Budget Committee on 14th May 2020, the fixed-term contract ending on 30th May 2020 and not renewable, a decision ratified by Council on 8th June 2020. Applying the Giella v Cassman Brown criteria, Nduma, J held that the claimant had left employment and that an interim injunction at that stage would amount to reinstatement before the lawfulness and fairness of the termination was conclusively determined. The balance of convenience favoured maintaining the status quo. The application was dismissed with costs in the cause. The ruling was delivered online under COVID-19 directions, the parties waiving compliance with Order 21 rule 1 of the Civil Procedure Rules.

Key legal issues

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01

Whether the Giella criteria for an interlocutory injunction were met

Holding

The application failed; an injunction would amount to reinstatement before determination of the fairness and legality of the termination

Reasoning

Applying Giella v Cassman Brown, the court held that granting an injunction restraining recruitment would effectively reinstate the claimant while the central factual question - whether the termination was lawful and fair - remained undetermined. The balance of convenience favoured maintaining the status quo, namely that the claimant had already left employment. The application was dismissed with costs in the cause.

p. 2

Legal principles established

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  • An interim injunction that would effectively reinstate an employee cannot issue before the lawfulness of the termination is conclusively determined; the status quo (departure from employment) is maintained pending trial

Court orders

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  1. 1.The application dated 12th June, 2020 is dismissed with costs in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 18
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (1)

  • Giella –vs- Cassman Brown Co. Ltd.
    [1973]
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court

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, "Irene Itoto Echakara v Law Society of Kenya [2021] KEELRC 2177 (KLR)", Case Analysis (2021). Application dated 12th June, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2177/eng@2021-02-08

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