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ELRCDismissedNotice of Motion dated 21st July 2023 (ruling)· [2024] KEELRC 101 (KLR)

Leoit & 59 others v Nairobi City County & 3 others (Cause E572 of 2023) [2024] KEELRC 101 (KLR)

Employment and Labour Relations Court
1 February 2024
LNLINNET NDOLO
1,591 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Nairobi enforcement officers lost their bid for emergency court protection because they couldn't show their rights were already being violated.

What this practically means

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Executive summary

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This is a ruling by the Employment and Labour Relations Court at Nairobi on the Claimants' Notice of Motion dated 21st July 2023. The Claimants, enforcement officers recruited by the Public Service Commission and deployed to the defunct Nairobi Metropolitan Services, sought leave to represent a further 580 officers, directions for filing particulars, a temporary injunction compelling payment of seven months' unpaid salary, suspension of an advertisement for one thousand enforcement officers, and an order restraining the Nairobi City County Public Service Board from recruiting. The 1st Respondent filed Grounds of Opposition denying any obligation to retain or pay the Claimants; the 2nd Respondent deponed that the Claimants' contracts were on local agreement terms that expired with the Deed of Transfer; and the 4th Respondent challenged the mandate and the injunction threshold. The Court noted that salary arrears had been paid, leaving only the recruitment injunction for determination. Applying Giella v Cassman Brown as sequenced in Nguruman, the Court held that the Claimants failed to establish a prima facie case with a probability of success, since the true state of their employment terms could only be resolved at a full trial; that they had not shown a real, non-speculative injury beyond damages; and that the balance of convenience did not favour them. The application was accordingly declined with costs in the cause.

Key legal issues

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01

Prima facie case

Holding

The Claimants failed to establish a prima facie case; their employment status after the lapse of the NMS tenure is a matter for full trial

Reasoning

The Court held the dispute over whether the Claimants' terms of engagement were changed midstream could not be resolved on the papers and required evidence at a full trial. On the material presented, no apparent infringement of a right was demonstrated to warrant the injunctive relief sought.

p. 6
02

Irreparable injury

Holding

The Claimants did not demonstrate a real injury; they first had to establish a real injury before invoking the statutory limits on damages

Reasoning

Although the Claimants argued that damages in employment matters are statutorily controlled and therefore inadequate, the Court held that the threshold question is the existence of a real injury, which the Claimants had not achieved. Their apprehension was therefore speculative.

p. 6
03

Balance of convenience

Holding

Having failed on the first two conditions, the balance of convenience did not favour the Claimants

Reasoning

The Court reasoned that once the Claimants failed to establish a prima facie case and irreparable injury, the balance of convenience could not tilt in their favour, and the application could not succeed on that third limb.

p. 6

Legal principles established

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  • The three Giella conditions for interim injunctions are applied as separate, distinct and sequential hurdles
  • A prima facie case requires an apparent infringement of a right calling for an explanation or rebuttal from the opposite party
  • An injury claimed in support of an interlocutory injunction must be real, not speculative

Court orders

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  1. 1.The Claimants' application dated 21st July 2023 is declined with costs in the cause

Authorities

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Cases cited (3)

  • Giella v Cassman Brown & Co. Ltd
    (1973) E.A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • Mrao v First American Bank of Kenya & 2 others
    [2003] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court

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, "Leoit & 59 others v Nairobi City County & 3 others (Cause E572 of 2023) [2024] KEELRC 101 (KLR)", Case Analysis (2024). Notice of Motion dated 21st July 2023 (ruling). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/101/eng@2024-02-01

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