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ELRCDismissedAmended Notice of Motion dated October 3, 2022 (Claim filed 15th September 2022)· [2023] KEELRC 600 (KLR)

Gatebi v Savannah Brands Company Ltd (Cause E650 of 2022) [2023] KEELRC 600 (KLR)

Employment and Labour Relations Court
13 March 2023
JGJacob Gakeri
4,620 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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The Employment Court refused to reinstate a dismissed employee before trial, confirming Kenya courts rarely grant interim reinstatement except in exceptional cases.

What this practically means

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Executive summary

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This was a ruling on the claimant's amended Notice of Motion dated October 3, 2022, seeking interlocutory conservatory orders following her summary dismissal by Savannah Brands Company Ltd on September 27, 2022 after a disciplinary process. She sought quashing of the dismissal letter, reinstatement, payment of withheld September 2022 salary, restraint on recruiting her replacement, and, in the alternative, full terminal dues. She alleged she was not supplied with documents requested to prepare her defence, that her advocate was denied audience at the disciplinary hearing, and that the process breached Article 50(1) of the Constitution and her rights to fair labour practices. The respondent, through the affidavit of its HR Director Christine Opiyo, contended she was given adequate time and documents, that she and her advocate walked out of the hearing, and that the substantive orders sought could not issue at an interlocutory stage. Applying the Giella v Cassman Brown and Nguruman tests and the Mrao definition of a prima facie case, the court found the applicant had only an arguable, not prima facie, case; had not shown irreparable injury not remediable by damages; and that the balance of convenience did not favour the orders. Relying on Rule 17(10) of the ELRC Procedure Rules and authorities including Anthony Omari Ongera v TSC, the court held reinstatement is a final, substantive order not grantable at the interlocutory stage absent exceptional circumstances. The application was dismissed with costs abiding the outcome of the main suit, and the matter was directed for mention before the Deputy Registrar on March 29, 2023.

Key legal issues

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01

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

Holding

The applicant established at most an arguable case, not a prima facie case, because the orders sought are substantive and cannot issue before the court hears the evidence of both parties.

Reasoning

Applying Mrao Ltd v First American Bank, a prima facie case requires more than an arguable case - evidence of an infringement of a right and probability of success at trial. The court found the applicant's case arguable only, and since the reliefs sought (quashing the dismissal, reinstatement) are substantive, they could not be granted at an interlocutory stage without hearing both parties' evidence.

p. 8
02

Whether the applicant demonstrated irreparable injury and balance of convenience

Holding

The applicant failed to demonstrate irreparable harm not remediable by damages, and the balance of convenience did not favour the orders sought.

Reasoning

Applying Nguruman v Jan Bonde Nielsen, speculative injury will not do; the injury must be actual, substantial and incapable of adequate monetary compensation. The court noted the applicant herself sought alternative payment of terminal dues, indicating she was amenable to monetary compensation, an indication that damages would be an adequate remedy in an employment dispute grounded on remuneration.

p. 9
03

Whether interim reinstatement can be granted

Holding

Reinstatement is a discretionary, final and substantive remedy that cannot be granted at the interlocutory stage absent exceptional circumstances; Rule 17(10) prohibits ex parte reinstatement orders.

Reasoning

Relying on Anthony Omari Ongera v Teachers Service Commission, Ahmed Aden Hire and Alfred Nyungu Kimungui, the court reiterated that reinstatement is a specific performance order with finality; interim orders would deny the employer a chance to present its defence. Only patently unfair terminations, such as automatically unfair grounds, may warrant interim reinstatement, and no exceptional circumstances were shown here.

p. 7

Legal principles established

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  • An order of reinstatement is final in nature and should only issue in exceptional cases warranting specific performance; it cannot be granted ex parte or at the interlocutory stage absent exceptional circumstances.
  • An applicant for an interlocutory injunction must establish a prima facie case, irreparable injury not compensable in damages, and the balance of convenience, as separate and distinct hurdles.
  • Substantive orders capable of disposing of the main suit cannot be granted at the interlocutory stage.

Court orders

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  1. 1.The application is dismissed for failure to meet the threshold for grant of the orders sought.
  2. 2.The matter to be mentioned before the Deputy Registrar on March 29, 2023 to confirm compliance and issue a hearing date.
  3. 3.Costs shall abide the outcome of the main suit.

Authorities

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Legislation

  • Employment and Labour Relations Court ActSections 3 & 12(3)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 17
  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Employment ActSections 43, 45, 47, 49
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (12)

  • Mwangi Stephen Muriithi v National Land Commission & 3 others
    (2018)
  • Vivo Energy Kenya Limited vs Maloba Petrol Station & 3 others
    (2015) eKLR
  • Jael Achieng Onyango v Housing Finance Development & Investment
  • Annielo Giella v Cassman Brown & Co. Ltd
    (1973) EA 358
  • Nguruman Ltd v Jan Bonde Nielsen & 2 others
    (2014) eKLR
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    (2003) KLR 125
  • Anthony Omari Ongera v Teachers Service Commission
    [2017] eKLR
  • Ahmed Aden Hire versus Natif Jama and County Government of Garissa
    Petition No 121 of 2016
  • Alfred Nyungu Kimungui versus Bomas of Kenya
    [2013] eKLR
  • Kenya Airways Ltd V Aviation & Allied Workers Union (Kenya) & 3 others
    (2014) eKLR
  • Joab Mehta Oudia V Coffee Development Board of Trustees
    (2014) eKLR
  • Sosten Kipruto Kerich V Monarch Insurance Co. Ltd
    (2015) eKLR
Jurisdiction invoked
Section 3 & 12(3) of the Employment and Labour Relations Court Act No. 20 of 2011 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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Later judgments citing this (4)

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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, "Gatebi v Savannah Brands Company Ltd (Cause E650 of 2022) [2023] KEELRC 600 (KLR)", Case Analysis (2023). Amended Notice of Motion dated October 3, 2022 (Claim filed 15th September 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/600/eng@2023-03-13

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