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ELRCDismissedNot stated in excerpt (ELRC, Nairobi)· [2023] KEELRC 1985 (KLR)

Ngige v Samsung Electronics EA Limited (Cause E273 of 2023) [2023] KEELRC 1985 (KLR)

Employment and Labour Relations Court
27 July 2023
2,696 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that a dismissed employee must show exceptional circumstances before a court can order them back to work while their case is still pending.

What this practically means

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Executive summary

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The claimant, formerly employed as Retail Marketing Manager, Internet & Mobile (I&M) Group, brought a Notice of Motion dated April 3, 2023 seeking an interlocutory injunction restraining the respondent from recruiting a substantive Retail Marketing Manager, and an order of reinstatement or re-engagement in a comparable position pending the hearing of his main suit challenging termination of his employment on December 9, 2022. The applicant argued that few comparable telecommunications employers exist in Kenya, that damages would be inadequate, and that sections 49 and 50 of the Employment Act, section 12(3) of the ELRC Act and Rule 17 of the ELRC Procedure Rules empower the court to reinstate an employee inter partes pending trial within three years of termination. The respondent, through the affidavit of Margaret Wachira, contended the dismissal was for negligence of duty after a fair process, the position had been filled (the division having been renamed Mobile Experience (MX) in 2021), and that reinstatement amounts to specific performance of an employment contract grantable only in exceptional circumstances, citing authorities including Stephen Kipkebut, Idriss Aden Mukhtar and Kenya Tea Growers Association. Nzioki wa Makau J held that exceptional circumstances must be demonstrated before reinstatement can issue pending hearing, found none established, and declined to order reinstatement at the interlocutory stage, leaving the remedy to be determined after trial. The application was dismissed with no order as to costs, with directions on the disposal of the suit to follow.

Key legal issues

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01

Jurisdiction to grant interlocutory reinstatement

Holding

While the court may have power to grant reinstatement after an inter partes hearing, exceptional circumstances must be shown; none were made out here.

Reasoning

The applicant invoked sections 49 and 50 of the Employment Act, section 12(3) of the ELRC Act and Rule 17 of the ELRC Procedure Rules to argue jurisdiction to reinstate pending trial. The respondent countered that reinstatement amounts to specific performance of an employment contract, grantable only in exceptional cases, and that such relief cannot issue provisionally. The court held that exceptional circumstances must be laid before interlocutory reinstatement and found they were not demonstrated.

p. 5
02

Mandatory injunction at interlocutory stage

Holding

The orders sought were in substance mandatory injunctions, which are only granted at interlocutory stage in clear cases and special circumstances; the threshold was not met.

Reasoning

The respondent argued, relying on Stephen Kipkebut and Idriss Aden Mukhtar, that reinstating a dismissed employee or restraining recruitment to his former position amounts to a mandatory injunction granted only in very clear cases and special circumstances. The court accepted that the claimant had not made out grounds for the prayer at the interlocutory stage and left the remedy to be determined after trial.

p. 5
03

Effect of the position having been filled

Holding

The respondent's filling of the position (the division having been renamed from IM to Mobile Experience (MX)) rendered the injunction orders effectively overtaken by events.

Reasoning

The respondent deponed that the claimant's position had been filled and that the division name changed from IM to MX in 2021, making the applicant's claim that a different position was filled misleading. The court nonetheless disposed of the application principally on the absence of exceptional circumstances for interlocutory reinstatement.

p. 5

Legal principles established

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  • After termination of employment, exceptional circumstances must be demonstrated before an order of reinstatement can be made at the interlocutory stage pending the hearing of the main suit
  • Reinstatement is effectively specific performance of a contract of employment and is a remedy properly granted upon full hearing of the claim

Court orders

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  1. 1.Application dismissed
  2. 2.No order as to costs
  3. 3.Parties to take directions on the disposal of the suit immediately after the ruling

Authorities

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Legislation

  • Employment Actsection 49 (including 49(3), 49(4))
  • Employment Actsection 50
  • Employment and Labour Relations Court Actsection 12(3)
  • Employment and Labour Relations Court (Procedure) Rules 2016Rules 17(6) and 17(10)

Cases cited (7)

  • Fadhil Juma Kisua & another v Kenya Ports Authority
    [2015] eKLR
  • Dolly Nyambura Mwangi v Faulu Micro Finance Bank Limited
    [2020] eKLR
  • Stephen Kipkebut t/a Riverside Lodge and Rooms v Naftali Ogola
    [2009] eKLR
  • Idriss Aden Mukhtar & 2 others v County Government of Garissa & another
    [2016] eKLR
  • Mundia Njeru Geteria v Embu County Government & 3 others
    [2013] eKLR
  • Kenya Tea Growers Association & another v Kenya Plantation and Agricultural Workers Union
    [2018] eKLR
  • Kenya Shipping Clearing Freight Logistics and Warehouse Workers Union v May Freight Ltd
    [2020] eKLR
Jurisdiction invoked
Sections 12(3) and 50 of the Employment and Labour Relations Court Act; section 49 of the Employment Act; Rule 17 of the ELRC (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 (1)

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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, "Ngige v Samsung Electronics EA Limited (Cause E273 of 2023) [2023] KEELRC 1985 (KLR)", Case Analysis (2023). Not stated in excerpt (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1985/eng@2023-07-27

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