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ELRCDismissedNot stated in the judgment as provided· [2023] KEELRC 3378 (KLR)

Kirui v Ekaterra Tea Kenya PLC (Employment and Labour Relations Cause E013 of 2023) [2023] KEELRC 3378 (KLR)

Employment and Labour Relations Court
19 December 2023
HWHellen Wasilwa
3,176 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court refused to reinstate a dismissed employee at an early stage, ruling reinstatement can only be ordered after a full hearing proves the dismissal unfair.

What this practically means

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Executive summary

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This ruling by the Employment and Labour Relations Court (Hon. Lady Justice Hellen Wasilwa, J, delivered virtually on 19 December 2023) determined the Claimant/Applicant's Notice of Motion dated 9 August 2023, brought under rule 17 of the ELRC (Procedure) Rules, 2016. The applicant, summarily dismissed on 8 May 2023 after a disciplinary process concerning alleged breaches of company policy including conflict of interest and sexual harassment of junior employees, sought conservatory orders staying the termination, immediate reinstatement, and temporary injunctions restraining the respondent from terminating his employment or filling his position pending determination of the substantive claim. He relied on Giella v Cassman Brown, Mrao Ltd v First American Bank and authorities on irreparable harm and balance of convenience, contending his dismissal violated sections 41, 43 and 45 of the Employment Act. The respondent, through the replying affidavit of its general counsel Lydia Musili and written submissions, opposed the application, arguing it was overtaken by events since the employment relationship had ended, that reinstatement cannot be granted at an interlocutory stage, and that no prima facie case, irreparable injury or balance of convenience was demonstrated. The court agreed that the applicant sought to reverse a termination already effected, found he had not established a prima facie case with a probability of success, and held that the orders sought would amount to final orders duplicating the substantive claim. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the applicant established a prima facie case with probability of success to warrant interim relief

Holding

The application failed as the applicant did not establish a prima facie case, having only set out the application without valid reasons

Reasoning

The court held that to reverse an already effected termination at an interlocutory stage, the applicant must establish a prima facie case with probability of success under the Giella principles. The applicant merely restated his application without demonstrating valid reasons that his dismissal was wrongful. Further, granting the orders would amount to giving final relief at an interlocutory stage, duplicating the substantive claim.

p. 7
02

Whether reinstatement can be ordered at an interlocutory stage

Holding

Reinstatement orders are final in nature and reserved for the full hearing under section 49(3)(a) of the Employment Act after proof of unfair termination

Reasoning

The respondent argued, relying on Alfred Nyungu Kimungui v Bomas of Kenya, Dorothy Vivian Atieno Ogutu v Mumias Sugar and Rose Sang v Siginon Group, that reinstatement can only be granted after proof of unfair termination at a full hearing. The court implicitly accepted this by finding the interim orders sought would amount to final orders already sought in the claim.

p. 7

Legal principles established

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  • Interim orders that would reverse an already effected termination cannot be granted where the applicant has not established a prima facie case with probability of success

Court orders

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  1. 1.Application dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Employment Actsection 44(3)
  • Employment Actsections 41, 43 and 45
  • Employment Act 2007section 49(3)(a)
  • Employment and Labour Relations Court (Procedure) Rules, 2016rule 17(1)(3)(4)&(5)

Cases cited (9)

  • Giella v Cassman Brown & Company Limited
    [1973] EA
  • Mrao Limited v First American Bank and others
    2003 eKLR
  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    [2018] eKLR
  • Amir Suleiman v Amboseli Resort Limited
    [2004] eKLR
  • Alfred Nyungu Kimungui v. Bomas of Kenya
    [2013] eKLR
  • Dorothy Vivian Atieno Ogutu C/O Bruce Advocates v Mumias Sugar Company Ltd
    [2015] eKLR
  • Rose Sang v Siginon Group Limited
    (2020) eKLR
  • Nyote Muhia v Lydiah Wairimu Kagodo & 2 others
    [2019] eKLR
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
    [2014] eKLR
Jurisdiction invoked
Rule 17(1)(3)(4)&(5) of the Employment and Labour Relations Court (Procedure) Rules, 2016 and all other enabling provisions of the law

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, "Kirui v Ekaterra Tea Kenya PLC (Employment and Labour Relations Cause E013 of 2023) [2023] KEELRC 3378 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3378/eng@2023-12-19

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