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ELRCDismissedNot stated in the judgment· [2023] KEELRC 2562 (KLR)

Mbaja & 28 others v County Government of Migori & another (Cause E041 of 2023) [2023] KEELRC 2562 (KLR)

Employment and Labour Relations Court
19 October 2023
CBChristine N. Baari
1,771 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Kisumu on the Claimants' notice of motion dated 19th June 2023, in which the three Applicants sought injunctions restraining the Respondents from intimidating or unlawfully terminating their contracts pending the hearing of the claim, alternatively reinstatement if already terminated, and a mandatory order compelling engagement on permanent terms. The Applicants, allegedly retained as casual labourers for between 4 and 14 years, complained of verbal threats of termination and a published list of employees omitting them, amounting to constructive termination without reasons, contrary to Article 47 of the Constitution. The Respondents, through a replying affidavit of Gadus Oluoch Adis, contended the Applicants were on three-month fixed-term contracts expressly non-renewable, which had expired by effluxion of time with dues paid. The Respondents' counsel did not attend the oral hearing on 19th September 2023. Applying the Nguruman triple test, Baari, J found a prima facie case established since continued long service showed threatened employment needing protection, but held that the Applicants' known monthly salaries rendered any injury measurable and compensable by damages, defeating irreparable injury. The reinstatement prayer failed as interim reinstatement is not grantable per Kenya Airways, and the permanent-terms prayer was a final relief unavailable at the interlocutory stage. The application was dismissed in its entirety with no orders on costs on 19th October 2023.

Key legal issues

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01

Whether the Applicants established a prima facie case

Holding

Continued service of 4 to 14 years showed threatened employment requiring protection, amounting to a prima facie case

Reasoning

The Applicants' long service was undisputed, indicating their employment was threatened and needed protection. That sufficed at the prima facie stage, though the threshold in Mrao requires an apparent infringement of a right with probability of success at trial.

p. 4
02

Whether the Applicants demonstrated irreparable injury

Holding

No - the injury was measurable and compensable by damages, so injunctive relief failed

Reasoning

The Applicants' monthly salaries were known figures, making any injury measurable and compensable monetarily. Under Nguruman, where damages are an adequate remedy, an interlocutory injunction should not issue, however strong the claim appears.

p. 5
03

Whether reinstatement or engagement on permanent terms could be ordered at the interlocutory stage

Holding

No - reinstatement is not granted at interim stage and permanent employment is a final relief

Reasoning

Following Kenya Airways Limited v Aviation & Allied Workers Union, reinstatement is not an interim remedy. Compelling employment on permanent terms is a final order unavailable at the interlocutory stage; both prayers failed.

p. 5

Legal principles established

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  • An applicant for an interlocutory injunction must sequentially establish a prima facie case, irreparable injury and balance of convenience
  • A prayer for reinstatement should not be granted at an interim stage

Court orders

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  1. 1.The application dated 19th June, 2023 dismissed
  2. 2.No orders on costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 2 & 3
  • Civil Procedure ActSection 3A
  • Constitution of KenyaArticles 27(1), 35(b), 41(1) and 47
  • Employment ActSections 10(7), 37(1,2,3 & 4) and 35

Cases cited (4)

  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • Dr. Simon Waiharo Chege v Paramount Bank of Kenya Ltd.
    Nairobi (Milimani) HCCC No. 360 of 2001
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    [2003] KLR 125
  • Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 others
    [2014] eKLR
Jurisdiction invoked
Order 40 Rules 1, 2 & 3 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act, Articles 27(1), 35(b), 41(1) and 47 of the Constitution and Sections 10(7), 37(1,2,3 & 4) and 35 of the Employment Act

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, "Mbaja & 28 others v County Government of Migori & another (Cause E041 of 2023) [2023] KEELRC 2562 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2562/eng@2023-10-19

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