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ELRCDismissedNot stated in the judgment· [2023] KEELRC 3241 (KLR)

Lidalo & another v County Government of Kakamega & 2 others (Cause E016 of 2023) [2023] KEELRC 3241 (KLR)

Employment and Labour Relations Court
7 December 2023
JKJemimah Keli
3,050 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court refused to halt recruitment for the applicants' old jobs, saying public interest and available damages outweighed their reinstatement claim.

What this practically means

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Executive summary

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This is a ruling on the Claimants'/Applicants' Notice of Motion dated 11th October 2023 in an employment claim before the Employment and Labour Relations Court at Kakamega, in which the applicants - accountants summarily dismissed by the 1st Respondent on allegations of misappropriation of public funds - sought a stay of the recruitment, interview or replacement process advertised by the 2nd Respondent for positions they previously held, pending the hearing of their claim whose main prayer is reinstatement. The 1st and 2nd Respondents opposed the application through the Replying Affidavit of Catherine Gathoni Otenyo, CEO and Secretary to the 2nd Respondent, arguing that the applicants are dismissed employees ineligible for the internal promotion-based advertisement, that positions were already filled, that the prayer amounted to reinstatement at an interlocutory stage which is untenable, and that public interest and the Respondents' managerial prerogative outweigh private rights. The court framed a single issue: whether the applicants proved on a balance of probabilities that allowing the recruitment to continue would render their claim academic. Characterising the prayer as a conservatory order, the court applied the Supreme Court's decision in Gatirau Peter Munya v Dickson Mwenda Kithinji, took judicial notice of the public interest in the smooth running of public bodies, held that public offices cannot remain in acting capacity indefinitely, and found the claim not nugatory since the applicants seek damages for unlawful termination. Reinstatement, the court held, is determinable only at full trial under section 49(4) of the Employment Act. The application was dismissed with costs in the cause, and the applicant was granted leave to appeal within 30 days.

Key legal issues

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01

Whether stay of the recruitment into the Claimants' former positions should be granted pending hearing of the claim

Holding

The application was dismissed; the court found the prayer was effectively a conservatory order whose grant would serve private rather than public interest, and that the claim would not be rendered nugatory because damages were sought.

Reasoning

The court took judicial notice that the 1st and 2nd Respondents are public bodies run on public funds, so there is greater public interest in the smooth running of their operations. The advertised offices are held in acting capacity, a temporary measure that cannot continue indefinitely. The claimants seek compensation damages in their substantive claim, so no irreparable prejudice arises. Reinstatement is a substantive remedy determinable only at full trial under section 49(4) of the Employment Act.

p. 6
02

Characterisation of the prayer as a conservatory order and the applicable test

Holding

The court applied the Supreme Court's distinction between interlocutory injunctions and conservatory orders, the latter bearing a public-law connotation and granted bearing in mind public interest and constitutional values.

Reasoning

Relying on Gatirau Peter Munya v Dickson Mwenda Kithinji, the court held the applicants' prayer was in essence a conservatory order. Unlike interlocutory injunctions tied to irreparable harm and probability of success, conservatory orders facilitate ordered functioning within public agencies and should be granted on the inherent merit of a case bearing in mind the public interest. On that footing the balance tipped against the applicants.

p. 6

Legal principles established

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  • Reinstatement can only be considered at the conclusion of a full trial on merit under section 49(4) of the Employment Act and cannot be granted, even in effect, at an interlocutory stage.
  • Where a claimant seeks compensation/damages in the substantive claim, a claim is not rendered nugatory by the filling of the former position, since damages remain an adequate remedy.

Court orders

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  1. 1.The Application dated 11th October 2023 is dismissed
  2. 2.Costs in the cause
  3. 3.Leave to appeal in 30 days granted
  4. 4.In the meantime parties to comply
  5. 5.Pretrial directions on 24.1.2023 if no appeal filed as per the leave
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (inherent interlocutory powers to grant conservatory orders/stay pending hearing of the claim)

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, "Lidalo & another v County Government of Kakamega & 2 others (Cause E016 of 2023) [2023] KEELRC 3241 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3241/eng@2023-12-07

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