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ELRCDismissedCause No E266 of 2023· [2023] KEELRC 2992 (KLR)

Itote v Kenya Airports Authority (Cause E266 of 2023) [2023] KEELRC 2992 (KLR)

Employment and Labour Relations Court of Kenya
22 November 2023
JGJacob Gakeri
2,235 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to stop Kenya Airports Authority from recruiting a new Chief Fire Officer at JKIA, because the employee showed no real legal wrong.

What this practically means

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Executive summary

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The Claimant, an employee of the Kenya Airports Authority serving as Chief Fire Officer, Job Grade S7, moved the court by Notice of Motion dated 30th March, 2023 seeking interim orders restraining the Respondent from processing applications for recruitment of the position of Chief Fire Officer at JKIA station pursuant to an internal memo dated 8th March, 2023, and from interfering with his duties. He asserted that his July 2021 transfer to Moi International Airport, where the position was not in the station's organogram, coupled with the advertisement of his former JKIA position, circumvented the law and the Human Resource Policy and violated his legitimate expectation and constitutional rights. The Respondent, through a Replying Affidavit sworn by Anthony Njagi, explained the transfer as an administrative action based on operational needs following a fire truck accident, maintained that the Applicant's job at MIA was guaranteed, and urged dismissal, noting the Applicant had not filed submissions as directed. The court framed a single issue: whether the application met the threshold for the orders sought. Applying Giella v Cassman Brown, Mrao Ltd and Nguruman Ltd, the court found no prima facie case, since the JKIA position fell vacant upon the transfer and its advertisement did not affect the Applicant's current post; no irreparable injury, since he continues serving as Chief Fire Officer; and the balance of convenience favoured the Respondent, for whom the JKIA post was crucial. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether the Applicant demonstrated a prima facie case with probability of success

Holding

He did not; the position of Chief Fire Officer at JKIA became vacant upon his transfer and its advertisement did not interfere with the position he holds at Moi International Airport

Reasoning

The court found it undisputed that the Applicant was transferred to Moi International Airport in the same capacity as Chief Fire Officer by letter dated 9th July, 2021. The advertisement of the JKIA position did not affect the Applicant's current position at MIA, and the vacancy at JKIA remained unfilled since his transfer. The Applicant therefore failed to establish an apparent infringement of a right calling for rebuttal.

p. 4
02

Whether the Applicant demonstrated irreparable injury

Holding

He did not; he continues to serve as Chief Fire Officer at Moi International Airport and damages could adequately compensate any injury

Reasoning

Applying Nguruman Ltd v Jan Bonde Nielsen, the court held the Applicant had not shown injury incapable of adequate compensation in damages, nor the absence of another remedy. His only demonstration was that he was transferred to Moi International Airport and continues to serve as Chief Fire Officer, having left a vacancy at JKIA. The court was unpersuaded that he stood to suffer irreparable injury if the orders were not granted.

p. 5
03

Where the balance of convenience lies

Holding

It does not tilt in the Applicant's favour; the Respondent would suffer more mischief if the orders were granted

Reasoning

The court considered the position of Chief Fire Officer at JKIA crucial to the Kenya Airports Authority and needing to be filled in an acting or substantive capacity. Recruitment would not demonstrably affect the Applicant's position at MIA, while granting the orders would be prejudicial to the Respondent. The Respondent would suffer more mischief or inconvenience if the orders were granted.

p. 5

Legal principles established

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  • The Giella v Cassman Brown principles govern the grant of interim injunctive orders: prima facie case with probability of success, irreparable injury, and balance of convenience
  • A prima facie case is one in which, on the material presented, a tribunal properly directing itself will conclude there exists a right apparently infringed so as to call for an explanation or rebuttal from the opposite party
  • Irreparable injury must be one that cannot be adequately compensated for in damages, and the existence of a prima facie case is not itself sufficient

Court orders

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  1. 1.The Notice of Motion dated 30th March, 2023 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) RulesRule 17
  • Civil Procedure Rules, 2010Order 51 Rules 1, 3 and 10
  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • Constitution of Kenya, 2010Articles 22(1), 23(3)(c), 165(3), 159(2)(d) and 48

Cases cited (3)

  • Giella v Cassman Brown & Co. Ltd
    (1975) EA 358
  • Mrao Ltd v First American Bank of Kenya & 2 others
    (2003) eKLR
  • Nguruman Ltd v Jan Bonde Nielsen & 2 others
    (2014) eKLR
Jurisdiction invoked
Articles 22(1), 23(3)(c) and 165(3) of the Constitution; Rule 17 of the Employment and Labour Relations Court (Procedure) Rules; Order 51 Rules 1, 3 and 10 of the Civil Procedure Rules, 2010; Sections 1A, 1B, 3 and 3A of the Civil Procedure 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, "Itote v Kenya Airports Authority (Cause E266 of 2023) [2023] KEELRC 2992 (KLR)", Case Analysis (2023). Cause No E266 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2992/eng@2023-11-22

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