Ang’awa v Kituo Cha Sheria & another (Petition 223 of 2022) [2023] KEELRC 698 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Interim stay of termination and restraint on recruitment
Declined; damages by way of back payment would make the petitioner whole after a full hearing, so no irreparable injury arises
The court adopted the reasoning in Sarah Wangui Karanja v Amref Health Africa in Kenya (Radido J) and Joab Mehta Oudia v Coffee Development Board of Trustees (Rika J) that staying a termination amounts to interim reinstatement without justification. Once termination is pronounced, there is nothing to arrest by way of stay, and damages by way of back payment consequent upon reinstatement after full hearing would restore the employee to her full position.
Whether the pending administrative appeal operates as a stay of termination
It does not; the petitioner showed no basis for such a proposition and the appeal decision has since been communicated
The petitioner lamented that the appeal decision had not been communicated, but the respondents demonstrated it had been communicated on December 21, 2022. In any event no prayer was made that the decision be communicated. The administrative appeal therefore did not suspend the termination decision.
Joinder of the 2nd respondent
The 2nd respondent is a necessary party; the application to strike her out fails
The petitioner made specific allegations against the 2nd respondent and sought reliefs against both respondents jointly. Although the 2nd respondent acted in official capacity and was not party to the contract of service, the petition mixed contractual and fundamental-rights claims, taking the matter beyond the doctrine of privity of contract. Her joinder is necessary for an effectual determination.
Legal principles established
#- The court cannot stay a termination of employment at an interlocutory stage; a stay of a termination would amount to interim reinstatement which interferes with a decision already made by management
- A claim for release of withheld wages is a mandatory and final injunction not grantable at the interim stage where the entitlement is contested
- The privity of contract doctrine does not bar joinder of a person against whom breach of fundamental rights and freedoms is specifically pleaded in a petition mixing contract and rights claims
Court orders
#- 1.The petitioner's application dated December 19, 2022 is dismissed
- 2.The respondents' application dated February 3, 2023 is dismissed
- 3.Each party to bear own costs of the applications
- 4.Parties to fix the matter for mention for further steps for the expeditious hearing and determination of the main petition
- Jurisdiction invoked
- Articles 22(2)(c), 23 and 159(2) of the Constitution of Kenya, 2010; rules 23 and 24 of the Constitution of Kenya (Protection of Fundamental Rights and Freedoms) Practice & Procedure Rules, 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ang’awa v Kituo Cha Sheria & another (Petition 223 of 2022) [2023] KEELRC 698 (KLR)", Case Analysis (2023). Petition (Employment and Labour Relations Court, Nairobi) — notice of motion dated December 19, 2022 and notice of motion dated February 3, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/698/eng@2023-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.