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ELRCAllowedPetition No E138 of 2022· [2023] KEELRC 359 (KLR)

Nang’ole v Nairobi City Water & Sewerage Company (Petition E138 of 2022) [2023] KEELRC 359 (KLR)

Employment and Labour Relations Court
15 February 2023
JGJacob Gakeri
3,048 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 blocked Nairobi Water from enforcing a memo that cut a director's contract terms, ruling employers can't impose term limits retroactively.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi (Dr. Jacob Gakeri, Judge) delivered virtually on 15th February 2023 on a Notice of Motion dated 29th July 2022 by a Petitioner, formerly Director ICT of the Respondent, Nairobi City Water and Sewerage Company Limited. The Applicant sought an interim injunction restraining the Respondent from enforcing an Internal Memo dated 8th June 2020 which introduced term limits and varied his terms of engagement to his detriment, pending the hearing of his Petition anchored on Articles 41 and 47 of the Constitution. He contended he left permanent and pensionable employment at Ketepa in 2012 for a performance-based renewable contract, was renewed in 2017, and that the retrospective introduction of a two-term limit in 2020 was unlawful, discriminatory and an unfair labour practice, compounded by withholding of his extraneous allowance. The Respondent, through Monica Tuli's Replying Affidavit, maintained the directors participated in reviewing the Human Resource Policies and Procedures, knew of the final-term renewal in 2017, and that a Public Service Commission circular of 10th February 2022 directed continued application of Board-approved HR instruments. Applying the Giella v Cassman Brown test as restated in Jan Bonde Nielsen v Nguruman and the Mrao definition of a prima facie case, the court found a threatened infringement of the Applicant's right to work, questioned the retrospective 2019 application of the 2013 HR Manual, found potential irreparable injury and balance of convenience in the Applicant's favour, granted the injunction and ordered costs in the cause. The Respondent did not file submissions.

Key legal issues

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01

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

Holding

Yes - the internal memo dated 8th June, 2020 threatened to alter the Applicant's terms of employment, demonstrating a threatened infringement of the right to work

Reasoning

The court applied the Mrao formulation of a prima facie case as read with Jan Bonde Nielsen. It found as undisputed that the Applicant joined in 2012 on a 3-year contract and in 2013 signed a 5-year renewable contract, renewed in 2017. The 8th June 2020 memo introduced term limits retrospectively. The court found it unclear why the Board did not implement the 2013 Manual until 2019 and applied it retrospectively to employees' detriment, concluding the memo threatened the Applicant's right to work.

p. 6
02

Whether the Applicant would suffer irreparable injury not compensable by damages

Holding

Yes - the Applicant left permanent and pensionable employment at Ketepa to join the Respondent on a fixed-term contract, and employment is more than terms and conditions of service

Reasoning

Relying on Jan Bonde Nielsen on irreparable injury, the court noted the Applicant abandoned permanent and pensionable employment at KETEPA on the strength of an advertisement with no term limit, and that his performance was exemplary. The court observed that employment is a multifaceted relationship, a source of satisfaction and fulfilment beyond mere terms of service, and concluded the Applicant could suffer irreparable injury.

p. 7
03

Whether the balance of convenience favours the Applicant

Holding

Yes - having satisfied the first two requirements, the balance of convenience leans in favour of the Applicant

Reasoning

Having found both a prima facie case and potential irreparable injury, the court had no doubts to ally via balance of convenience, but stated it was satisfied the balance leaned in favour of the Applicant, completing the sequential Giella test and entitling the Applicant to the interim injunctive relief sought.

p. 7

Legal principles established

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  • An employer's unilateral variation of an employee's terms of employment to his detriment constitutes a threatened infringement of the right to work capable of supporting a prima facie case
  • Retrospective application of a Human Resource Manual to the detriment of employees is a factor against the employer

Court orders

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  1. 1.The Respondent is restrained from enforcing the contents of the Internal Memo Ref: NCWSC/HRD/VOL.1/953/MNT/vn dated 8th June, 2020 in so far as it affects the Applicant pending the hearing and determination of the Petition
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 232(1)(d)
  • Constitution of Kenya, 2010Article 234(2)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 17
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (4)

  • Giella V Cassman Brown & Co. Ltd
    (1973) EA 358
  • Jan Bonde Nielsen V Nguruman & 2 other
    (2014) eKLR
  • Kenya Commercial Finance Co. Ltd V Afraha Education Society
    (2001) 1 EA 86
  • Mrao Ltd V First American Bank of Kenya Ltd & 2 others
    (2003) KLR 125
Jurisdiction invoked
Articles 41 and 47 of the Constitution of Kenya, 2010 and Rule 17 of the Employment and Labour Relations Court (Procedure) Rules, 2016

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, "Nang’ole v Nairobi City Water & Sewerage Company (Petition E138 of 2022) [2023] KEELRC 359 (KLR)", Case Analysis (2023). Petition No E138 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/359/eng@2023-02-15

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