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ELRCPartially AllowedNot stated in the excerpt· [2023] KEELRC 792 (KLR)

Ndinda v Ethics and Anti-Corruption Commission (Constitutional Petition E209 of 2021) [2023] KEELRC 792 (KLR)

Employment and Labour Relations Court
27 March 2023
MMM. Mbarũ
3,759 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed dismissed employees cannot get interim reinstatement before a full hearing, but may skip internal appeals where they would be futile.

What this practically means

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Executive summary

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The petitioner, formerly employed by the respondent as Legal Officer II, filed a notice of motion dated February 16, 2023 under articles 22, 23(3), 35, 47, 50 and 258 of the Constitution and the Fair Administrative Action Act. She sought leave to waive internal appeal proceedings, a stay of the effects of her summary dismissal by letter dated February 10, 2023, interim reinstatement, and disclosure of documents relating to her grievance and disciplinary process. She alleged a unfair disciplinary process conducted in violation of the Fair Administrative Action Act, the respondent's HR policy, and an earlier court ruling of April 4, 2022 directing the respondent to first conclude her grievances. The respondent opposed, arguing that the court was being asked to usurp the employer's disciplinary prerogative, that a dismissal already in effect could not be stayed, and that reinstatement is not available at an interlocutory stage under rule 17(10) of the ELRC Rules. The court held that reinstatement is a substantive remedy grantable only after a full hearing, citing section 49(4) of the Employment Act and Alfred Nyungu Kimungii v Bomas of Kenya; a stay of the dismissal letter would in substance be interim reinstatement and could not issue. However, the petitioner was justified in waiving the respondent's internal appeal procedures given the procedural history, and was directed to particularize the exact documents she seeks before disclosure. The application otherwise failed, with costs to abide the outcome of the main petition.

Key legal issues

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01

Whether stay of a summary dismissal can be granted at the interlocutory stage

Holding

Refused, because a stay of the dismissal letter would amount to interim reinstatement, a substantive remedy reserved for a full hearing.

Reasoning

The court reasoned that staying the dismissal letter would effectively return the petitioner to her position, defeating the purpose of an interlocutory application and denying the court the opportunity to hear the petition on the merits. Reinstatement under sections 49 and 46 of the Employment Act requires specific performance considerations addressed only after a full hearing, absent exceptional circumstances.

p. 7
02

Whether the petitioner could waive internal appeal proceedings

Holding

Allowed, because subjecting the petitioner to the respondent's internal appeal after the April 4, 2022 ruling would not resolve the disputes.

Reasoning

The court considered the history of proceedings, including its earlier ruling directing the respondent to address the petitioner's grievances. Given the back-and-forth between the parties and the pending complaint before the Commission on Administration of Justice, requiring an internal appeal would not resolve the issues in dispute, so the waiver was justified.

p. 8
03

Whether the respondent should disclose documents relating to the disciplinary process

Holding

Granted only in part; the petitioner must first particularize the exact documents sought.

Reasoning

The court accepted that the petitioner needs documents to urge her petition effectively, but found her request general and incapable of reasonable response. She was directed to state the exact documents and correspondences required, which the respondent would then reasonably assess and supply.

p. 8

Legal principles established

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  • Reinstatement is a substantive remedy, not interim relief, and should only be granted after a full hearing unless exceptional circumstances are demonstrated.
  • Interlocutory reinstatement should only issue for good cause or exceptional circumstances and if practicable.
  • Where the remedy of reinstatement is sought, the court must await a full hearing and address the requirements of section 49(4) of the Employment Act before granting it.

Court orders

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  1. 1.The petitioner is allowed to waive the right to appeal through the respondent's internal procedures
  2. 2.The petitioner shall particularize the exact documents and correspondences required from the respondent before such can be supplied, to be reasonably assessed by the respondent
  3. 3.The remainder of the application dated February 16, 2023 is dismissed as without merit
  4. 4.Costs shall abide the outcome of the main petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 22, 22(1), 22(3), 23(3), 35, 47, 50, 258
  • Civil Procedure Rules 2010Order 51 Rule 1
  • Fair Administrative Action ActSections 4(1)(2)(3)(4)(5), 6, 7, 10(1), 11, 12
  • Employment & Labour Relations Court (Procedure) Rules, 2016Rule 17(10)
  • Employment Act, 2007Sections 46, 49(4)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure RulesNot specified

Cases cited (9)

  • Nazareno Kariuki v Feed the Children Kenya
    [2013] eKLR
  • Lawrence Nyamichaba Ondari v National Hospital Insurance Fund
    [2018] eKLR
  • Republic v National Assembly & another ex parte Coalition for Reforms and Democracy (CORD)
    [2016] eKLR
  • Fredrick Odhiambo Walukwe v Cabinet Secretary Ministry of Interior and Co-ordination of National Government & 2 others
    [2020] eKLR
  • Law Society of Kenya v The Attorney General & others
    Petition No. E203 of 2020
  • Daniel N Mugendi v Kenyatta University & 3 others
    [2013] eKLR
  • Sumaiyya Athnami Hassan v Paul Masinde Simidi
    [2019] eKLR
  • Alfred Nyungu Kimungii v Bomas of Kenya
    [2013] eKLR
  • Kenya Tea Growers Association v Kenya Plantation & Agricultural Workers Union
    [2018] eKLR
Jurisdiction invoked
Articles 22, 23(3), 35, 47, 50 and 258 of the Constitution of Kenya; sections 4, 6, 7, 10(1), 11 and 12 of the Fair Administrative Action Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Ndinda v Ethics and Anti-Corruption Commission (Constitutional Petition E209 of 2021) [2023] KEELRC 792 (KLR)", Case Analysis (2023). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/792/eng@2023-03-27

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