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ELRCDismissedPetition No E024 of 2023· [2023] KEELRC 3051 (KLR)

Ombati v Governor Nyamira County & another (Petition E024 of 2023) [2023] KEELRC 3051 (KLR)

Employment and Labour Relations Court
30 November 2023
CBC. N. Baari
2,037 words in judgment
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The bottom line

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Kenya's Employment Court confirmed you cannot get reinstated at an interim stage of a case—reinstatement is a final remedy only granted after a full hearing.

What this practically means

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Executive summary

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The Applicant, formerly the County Executive Committee Member for Health Services in Nyamira County, moved the Court by motion dated 11th September 2023 seeking conservatory orders suspending the decision of the Respondents terminating his employment by letter dated 6th September 2023, and reinstating him pending the hearing of his petition. The termination followed the delayed and partial delivery by MEDS of a consignment of drugs worth approximately Kshs 22 million, and an audit report that flagged lack of transparency and accountability. The Applicant alleged he was summarily dismissed for the supplier's failure, while the 1st Respondent, the Governor, averred that the Applicant misrepresented that the full consignment had been delivered at a launch he commissioned, contrary to Article 73 principles of integrity and accountability. The Respondents opposed the motion, submitting that reinstatement at an interlocutory stage would determine the petition prematurely. The court framed the sole issue as whether reinstatement was available at the interlocutory stage. Relying on authority that reinstatement is a final order, and holding that once termination is pronounced there is nothing left to conserve, the court declined to grant the relief, noting the Applicant would have other remedies under section 12(3) of the Employment and Labour Relations Act if the petition succeeded. The motion was dismissed with costs abiding the cause. Judgment was delivered at Kisumu on 30th November 2023 by C. N. Baari, Judge.

Key legal issues

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01

Whether reinstatement can be granted by way of conservatory orders pending the hearing of the petition

Holding

It cannot; reinstatement is a final remedy and a conservatory order cannot preserve employment already terminated

Reasoning

The court relied on authority that termination cannot be stayed at an interlocutory stage as that would unduly interfere with the employer's decision, and that reinstatement is a final order to be granted only after a full hearing. Granting reinstatement at the interlocutory stage would effectively conclude the petition without according the parties an opportunity to ventilate their cases. The Applicant would not be left without a remedy as the court has statutory powers to award numerous reliefs under section 12(3) of the Employment and Labour Relations Act if the petition succeeds.

p. 5

Legal principles established

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  • Reinstatement is in the nature of a final order and should only issue upon final determination of the matter, not at an interlocutory stage
  • A conservatory order cannot be used to stay or reverse a termination already pronounced by an employer

Court orders

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  1. 1.The Applicant/Petitioner's motion dated 11th September 2023 is dismissed
  2. 2.Costs shall abide the cause

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 40, 47, 50, 73
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Procedure RulesRule 23
  • Employment Actsections 43, 44, 45
  • Employment and Labour Relations Actsection 12(3)

Cases cited (6)

  • Muslim for Human Rights & 2 others vs Attorney General & 2 others
    (2011) eKLR
  • Invesco Assurance Co. Ltd Vs MW (Minor Suing Through Next Friend And Mother (HW)
    (2016) eKLR
  • Muturi v Havi & 21 others
    (Civil Application E435 of 2021) [2022] KECA 938 (KLR)
  • Joab Mehta Oudia v Cofiee Development Board of Trustees
    [2014] eKLR
  • Kinyanjui v Rural Electrication & Renewable Energy Corporation
    [2023] KEELRC 580 (KLR)
  • Giella vs. Cassman Brown
Jurisdiction invoked
Articles 10, 40, 47 and 50 of the Constitution and Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Procedure Rules

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, "Ombati v Governor Nyamira County & another (Petition E024 of 2023) [2023] KEELRC 3051 (KLR)", Case Analysis (2023). Petition No E024 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3051/eng@2023-11-30

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