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ELRCDismissedNot stated in the judgment· [2022] KEELRC 810 (KLR)

Duke Oriku Machini v Regis School Runda & another [2022] KEELRC 810 (KLR)

Employment and Labour Relations Court
11 February 2022
MOMAUREEN ONYANGO
2,119 words in judgment
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The bottom line

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A Kenyan employment court refused to reinstate a sacked ICT teacher pending trial, confirming compensation—not reinstatement—is the default remedy for unfair termination.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Employment and Labour Relations Court at Nairobi delivered by Maureen Onyango, J, on 11th February 2022. The claimant, a former ICT teacher at Regis School-Runda, moved the court by Notice of Motion dated 14th June 2021 seeking an interlocutory injunction restraining the 1st Respondent from advertising, shortlisting, interviewing, recruiting or otherwise filling the ICT teacher position, and an order reinstating him pending the hearing of the application. He alleged his fixed-term employment was terminated following a rushed and unfair disciplinary process instigated by the 2nd Respondent, whom he accused of soliciting sexual advances and fabricating misconduct allegations. The respondents opposed through grounds of opposition and a replying affidavit sworn by the Human Resource Manager, Enock Ruto, asserting that due process was followed, the dismissal was for gross misconduct involving female learners, and that reinstatement would endanger students. They relied on authorities holding that reinstatement cannot issue at the interlocutory stage and on the Giella v Cassman Brown injunction test. The claimant filed no submissions. The court framed two issues: whether to grant the interlocutory injunction and whether to grant reinstatement. Applying Giella v Cassman Brown and Mrao Ltd, the court held the claimant had not demonstrated irreparable harm not compensable by damages, since compensation is the first-line remedy under section 49 of the Employment Act, and that reinstatement is not an automatic remedy and entitlement under section 49(4) can only be determined at the hearing. The balance of convenience favoured refusing the orders. The application was dismissed with costs in the cause.

Key legal issues

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01

Interlocutory injunction

Holding

The application failed the Giella v Cassman Brown test: no prima facie case with probability of success, no demonstration of irreparable harm, and the balance of convenience favoured refusing the orders

Reasoning

The court applied the established three-limb test. On the first limb, the claimant's entitlement to reinstatement under section 49(4) could only be established at the hearing. On the second limb, compensation is the first-line remedy under section 49 of the Employment Act and the claimant did not show damages would be inadequate. On the third limb, refusing the orders was more convenient since reinstatement could still be ordered if the claim succeeded.

p. 4
02

Reinstatement at the interlocutory stage

Holding

A reinstatement order cannot issue at the interlocutory stage; entitlement must be demonstrated under section 49(4) of the Employment Act, which can only be done at the hearing

Reasoning

The court accepted the respondents' position, supported by authority, that reinstatement is only awarded in special circumstances. Since the claimant's entitlement under section 49(4) could not be assessed without a full hearing, the interlocutory reinstatement prayer could not be granted.

p. 3

Legal principles established

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  • The threshold for granting an interlocutory injunction is that the applicant must establish a prima facie case with probability of success, demonstrate irreparable harm, and failing that, the court determines on a balance of convenience
  • In cases of termination of employment, reinstatement is not an automatic remedy and is governed by section 49(4) of the Employment Act
  • Compensation is the first line of remedy for an employee who has been unfairly terminated under section 49 of the Employment Act

Court orders

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  1. 1.The Notice of Motion dated 14th June 2021 is dismissed
  2. 2.Costs of the application shall be in the cause

Authorities

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Legislation

  • Employment Actsection 45(2)
  • Employment Actsection 49
  • Employment Actsection 49(4)
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure Act (Chapter 21 of the Laws of Kenya)Section 1B

Cases cited (6)

  • Kenya Airways Limited v Aviation Workers Union Kenya & 3 Others
    (2014) eKLR
  • Anthony Omari Ongera v Teachers Service Commission
    (2017) eKLR
  • Alfred Nyungu Kimungui vs Bomas of Kenya
    (2013) eKLR
  • Giella v Cassman Brown
    (1973) E.A 358
  • Dolly Nyambura Mwangi v Faulu Micro Finance Bank Limited
    (2020) eKLR
  • Mrao Limited v First American limited & 2 others
    (2003) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (specific enabling provision not cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Duke Oriku Machini v Regis School Runda & another [2022] KEELRC 810 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/810/eng@2022-02-11

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