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ELRCDismissedNotice of Motion dated July 27, 2022 in Memorandum of Claim dated July 16, 2022· [2023] KEELRC 742 (KLR)

Otieno v Herald International School & 2 others (Cause E530 of 2022) [2023] KEELRC 742 (KLR)

Employment and Labour Relations Court
22 March 2023
JGJacob Gakeri
2,011 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court dismissed a dismissed teacher's bid for immediate reinstatement, confirming that final outcomes cannot be granted before a full hearing.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated July 27, 2022 in an employment claim before the Employment and Labour Relations Court at Nairobi, delivered by Dr. Jacob Gakeri J on March 22, 2023. The claimant, a teacher employed in February 2020 and terminated on July 9, 2021, sought interim reinstatement, one month's pay in lieu of notice, withheld salary of Kshs 50,000 and withheld house allowance of Kshs 7,500 pending hearing of his memorandum of claim. He submitted that his termination breached Sections 41, 43 and 45 of the Employment Act, 2007, relying on Mary Chemweno Kiptui v Kenya Pipeline. The Respondents, maintaining the claimant was employed verbally at Kshs 20,000 (later reduced by 30%) and was dismissed for various misconduct, countered that the application sought final reliefs at the interlocutory stage and was frivolous and vexatious, relying on East African Portland Cement, Olive Mwihaki Mugenda and Ashok Kumar Bajpai. The court framed a single issue: whether the application was merited. Finding that the reliefs sought were substantially the same as those in the main suit and depended on evidence not yet adduced, that reinstatement is a final and discretionary remedy, that no urgency was shown since the application was filed more than a year after dismissal, and that no special or exceptional circumstances justified interim relief, the court dismissed the application as premature, with costs in the cause.

Key legal issues

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01

Whether final reliefs (reinstatement and terminal dues) may be granted at the interlocutory stage

Holding

The court refused to grant final orders at the interlocutory stage; the application was premature and was dismissed

Reasoning

The court adopted the approach in Olive Mwihaki Mugenda and Ashok Kumar Bajpai that interim relief amounting to final relief should only be granted in exceptional circumstances with recorded reasons. All the reliefs sought depended on evidence yet to be adduced, reinstatement is a final and discretionary remedy, and the applicant showed no urgency, having filed the application over a year after dismissal.

p. 4
02

Whether the application demonstrated urgency

Holding

No urgency was demonstrated

Reasoning

The claimant was dismissed on July 9, 2021 but filed the Notice of Motion and suit on July 27, 2022, more than a year later, undermining any claim of urgency.

p. 5

Legal principles established

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  • Final reliefs ought not to be granted at the interlocutory stage except in rare and exceptional circumstances, with reasons stated

Court orders

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  1. 1.The Application dated July 27, 2022 is dismissed as premature
  2. 2.Costs shall be in the cause
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Employment Act, 2007 invoked); Article 48 and Article 159(2)(d) of the Constitution cited in the delivery order

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, "Otieno v Herald International School & 2 others (Cause E530 of 2022) [2023] KEELRC 742 (KLR)", Case Analysis (2023). Notice of Motion dated July 27, 2022 in Memorandum of Claim dated July 16, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/742/eng@2023-03-22

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