Naomi Jelimo v Naomi Jelimo [2021] KEELRC 2279 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the applicant established a prima facie case with probability of success
The applicant established a prima facie case with probability of success upon trial
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.
Whether the applicant would suffer irreparable harm if the injunction was withheld
The court found the termination may cause irreparable harm since it impacts future employability and damages cannot remedy the loss
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.
Where the balance of convenience lay
The balance of convenience militated against granting the injunction
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.
Whether the annexures referred to in the Applicant's affidavit of service should be expunged
The court declined to expunge the annexures, finding them properly commissioned
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.
Legal principles established
#- 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
#- 1.The claimant's Notice of Motion dated 30 October 2020 is dismissed
- 2.Costs of the application to abide the outcome of the main suit
- Jurisdiction invoked
- Rule 17 of the Employment and Labour Relations Court (Procedure) Rules 2016 and all other enabling provisions of the law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.