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ELRCDismissedCause No E568 of 2023· [2023] KEELRC 3141 (KLR)

Muniu v Lexo Energy Kenya Limited (Cause E568 of 2023) [2023] KEELRC 3141 (KLR)

Employment and Labour Relations Court
27 November 2023
JGJACOB GAKERI
2,971 words in judgment
View original judgmentRead on Kenya Law Watch case
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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 Nairobi on the Claimant's Notice of Motion dated 17th July, 2023 seeking suspension of a redundancy notice dated 21st June, 2023 pending the hearing of the main suit, brought under Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. The Claimant, Jesse Muniu, a former Managing Director declared redundant, alleged the redundancy contained errors in the calculation of the notice period, that proper process was not followed, and that it was a scheme to push him out before he could benefit from share options worth approximately USD 1.7 million and to avoid refunding monies he had invested in the company. He also alleged an imminent sale or merger with Vivo Energy Kenya Ltd. The Respondent, Lexo Energy Kenya Ltd, countered that the redundancy was a genuine business decision occasioned by COVID-19 lockdowns and unpaid government fuel subsidy, that all dues were paid, that share options could only be cashed upon majority shareholder exit or sale of the company, and that no merger discussions existed, as confirmed by a Competition Authority of Kenya letter. The court, applying Giella v Cassman Brown, found the applicant had a prima facie case but failed on irreparable injury, since the harm alleged was monetary and compensable, and failed on balance of convenience. The application was dismissed with no orders as to costs. The court noted that serious allegations raised in the further affidavit required testing at the full hearing.

Key legal issues

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01

Whether the applicant established a prima facie case with probability of success

Holding

Yes - the material before the court was sufficient to demonstrate a prima facie case, notwithstanding the absence of documentary proof of a merger or acquisition

Reasoning

The court found the applicant had deposited monies into the Respondent's and Lexo Energy Mauritius' accounts and held share option letters. Although no documents showed an imminent merger with Vivo Energy, the material was sufficient to show a right apparently infringed calling for rebuttal.

p. 6
02

Whether the applicant demonstrated irreparable injury

Holding

No - the harm alleged was monetary and therefore capable of being adequately remedied by damages

Reasoning

The applicant sought suspension of the redundancy notice to obtain a refund of invested monies and share options, all financial in nature. Financial loss is quantifiable and compensable, so the irreparable harm limb of Giella failed.

03

Whether the balance of convenience tilted in the applicant's favour

Holding

No - the applicant failed to demonstrate that the balance of convenience favoured him

Reasoning

Relying on Byran Chebii Kipkoech v Barnabas Tuitoek Bargoria, the court found the comparative inconvenience test was not satisfied on the evidence, completing the applicant's failure on all three Giella limbs.

p. 6

Legal principles established

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  • A prima facie case in a civil application is a genuine and arguable case in which a right has apparently been infringed so as to call for an explanation or rebuttal from the opposite party
  • Irreparable injury means harm that is substantial and cannot be adequately remedied or atoned for by damages
  • The grant of an interlocutory injunction involves the exercise of judicial discretion

Court orders

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  1. 1.The Notice of Motion dated 17th July, 2023 seeking suspension of the redundancy notice dated 21st June, 2023 is dismissed with no orders as to costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40 Rules 1, 2 and 3
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 1B
  • Civil Procedure Rules, 2010Order 21 Rule 1
  • Employment ActNot specified
  • Oaths and Statutory Declaration ActNot specified
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48

Cases cited (5)

  • Giella V Cassman Brown & Co. Ltd
    (1973) EA 358
  • Abel Salim & others V Okong'o & others
    (1976) KLR 42
  • Mrao Ltd V First American Bank of Kenya Ltd & 2 others
    (2003) KLR
  • Nguruman Ltd V Jan Bonde Nielsen & 2 others
    (2014) eKLR
  • Byran Chebii Kipkoech v Barnabas Tuitoek Bargoria & another
    (2019) eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction; Notice of Motion under Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules, 2010 and Section 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, "Muniu v Lexo Energy Kenya Limited (Cause E568 of 2023) [2023] KEELRC 3141 (KLR)", Case Analysis (2023). Cause No E568 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3141/eng@2023-11-27

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