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ELRCDismissedCause No E708 of 2020· [2021] KEELRC 2279 (KLR)

Naomi Jelimo v Naomi Jelimo [2021] KEELRC 2279 (KLR)

Employment and Labour Relations Court
22 January 2021
2,783 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to temporarily reinstate an employee on probation, showing that even strong unfair-termination claims rarely win interim injunctions.

What this practically means

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Executive summary

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The Claimant, Naomi Jelimo, moved the Court by Notice of Motion dated 30 October 2020 under Rule 17 of the ELRC (Procedure) Rules 2016, seeking interlocutory orders restraining her non-confirmation and termination during probation, setting aside the decision placing her on leave, and compelling her confirmation as Head of Human Resources and Member Services. She was employed on 15 July 2020 on a three-month probation and received a non-confirmation letter on 23 October 2020 following a performance review, after which she was asked to hand over and proceed on leave. She contended the termination breached the IHRM Human Resources Manual and her contractual and constitutional rights, relied on her previous public-service employment to argue the probation term was unlawful, and relied on Giella v Cassman Brown to claim interlocutory relief. The Respondent, through its Acting Executive Director Irene Kimacia, maintained it was entitled not to confirm a probationer, citing misconduct, incompatibility, and loss of trust and confidence. The court framed one main issue: whether the applicant met the threshold for an interlocutory injunction. Applying Giella, the court found a prima facie case with probability of success and that irreparable harm would arise from the impact on future employability, damages being inadequate. However, the balance of convenience militated against the injunction because relations between the parties were strained, and an injunction would amount to reinstatement contrary to Section 49(3) of the Employment Act. The court also declined to expunge the annexures, finding them properly commissioned. The application was dismissed with costs to abide the outcome of the main suit.

Key legal issues

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01

Whether the applicant established a prima facie case with probability of success

Holding

The applicant established a prima facie case with probability of success upon trial

Reasoning

The applicant claimed her contractual and constitutional rights were violated: she was not involved in appraisals, was discriminated against as colleagues were confirmed without appraisals, was subjected to unnecessary probation despite prior public service, and the IHRM Manual was breached. The court found these raise pertinent issues for examination at trial and satisfied the first Giella limb.

p. 4
02

Whether the applicant would suffer irreparable harm if the injunction was withheld

Holding

The court found the termination may cause irreparable harm since it impacts future employability and damages cannot remedy the loss

Reasoning

The claimant resigned from employment earning Kshs.253,400 gross. Damages under Section 49 of the Employment Act are merely a penalty to appease the employee and cannot reverse the violation, so the second Giella limb was also satisfied.

p. 4
03

Where the balance of convenience lay

Holding

The balance of convenience militated against granting the injunction

Reasoning

Correspondence showed the relationship between the claimant and the Respondent's Ag. Executive Director was thoroughly strained; forcing them to work together would be illogical. Further, an injunction would effectively reinstate the claimant, which Section 49(3) of the Employment Act permits only upon a finding of unfair termination after considering Section 49(4) factors.

p. 4
04

Whether the annexures referred to in the Applicant's affidavit of service should be expunged

Holding

The court declined to expunge the annexures, finding them properly commissioned

Reasoning

The respondent sought expungement of exhibits in the affidavit of service for not being sealed or commissioned. The court reviewed the record and confirmed the annexures were properly commissioned under the Oaths and Statutory Declaration Act.

p. 3

Legal principles established

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  • A termination letter takes effect upon issuance and once it takes effect the employment relationship ends; it can only be reversed by an order of reinstatement or re-engagement under Section 49(3) of the Employment Act
  • Termination during probation may cause irreparable harm because it impacts on future employability, and damages under Section 49 of the Employment Act cannot remedy such loss

Court orders

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  1. 1.The claimant's Notice of Motion dated 30 October 2020 is dismissed
  2. 2.Costs of the application to abide the outcome of the main suit

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) RulesRule 17
  • Public Service Commission ActSections 3, 41(6)
  • Human Resource Management Professionals ActNo. 52 of 2012
  • Employment ActSections 49(3), 49(4), 50
  • Oaths and Statutory Declaration ActNot specified
  • Constitution of KenyaArticles 159(2)(d), 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (8)

  • Hamisi Bweni Dzila v County Assembly of Kwale and another
    (2020) eKLR
  • Jane Samba Mukala v Ol Tukai Lodge Limited
    (2010) LLR 255 (ICK)
  • John Muthomi Mathiu v Mastermind Tobacco (K) Limited
    (2018) eKLR
  • Danish Jalango & another v Amicabbre Travel Services Limited
  • Joab Menta Oudia v Coffee Development Board of trustees
    (2014) eKLR
  • Giella v Cassman Brown
    [1973] EA 358
  • Mrao Limited v First American of Kenya limited & 2 others
    [2003] eKLR
  • Gladys Boss Shollei v Judicial Service Commission
    Petition No 39 of 2013
Jurisdiction invoked
Rule 17 of the Employment and Labour Relations Court (Procedure) Rules 2016 and all other enabling provisions of the law

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, "Naomi Jelimo v Naomi Jelimo [2021] KEELRC 2279 (KLR)", Case Analysis (2021). Cause No E708 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2279/eng@2021-01-22

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