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ELRCDismissedCause No E085 of 2023· [2024] KEELRC 377 (KLR)

Siso v Governor, County Government of Siaya & 2 others (Cause E085 of 2023) [2024] KEELRC 377 (KLR)

Employment and Labour Relations Court
29 February 2024
CBChristine N. Baari
1,093 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that an interim stay of a completed termination amounts to reinstatement, a final remedy unavailable before full trial.

What this practically means

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Executive summary

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The Applicant, an employee of the 2nd Respondent county government, moved the court by a motion dated 2nd November 2023 seeking an interim stay of a notice of termination of employment dated 4th October 2023, communicated through social media, and an order stopping his replacement. He argued that he had been sent on compulsory leave pending an audit that exonerated him, and that his termination was unfair and contrary to Sections 43 and 45 of the Employment Act. The Respondents opposed, contending that the termination notice had crystallised, the position had been filled, that granting the orders would amount to reinstatement through the back door, and that the application disclosed no prima facie case or irreparable injury. In a judgment delivered on 29th February 2024, Baari J framed a single issue: whether to stay the effect of the termination notice. Applying the Giella v Cassman Brown test, the court accepted that the Applicant had established a prima facie case, having had a valid contract terminated prematurely. However, the court held that staying a termination notice that has taken effect would effectively reinstate the Applicant, a final remedy that cannot issue at an interim stage, and that the Applicant had not demonstrated that damages would be inadequate compensation. Section 12(3) of the Employment and Labour Relations Act offers other reliefs should the claim succeed. The motion was dismissed with costs in the cause.

Key legal issues

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01

Whether an interim stay of a termination notice can be granted

Holding

No - staying a termination notice that has taken effect amounts to reinstatement, a final order that cannot issue at an interim stage, and the Applicant failed the damages limb

Reasoning

The court found the Applicant established a prima facie case since he had a valid contract terminated prematurely. However, the effect of staying the termination notice would be to reinstate him, which is a final order requiring full hearing. Damages would adequately compensate him if the termination is ultimately found unfair, and Section 12(3) of the Employment and Labour Relations Act provides other reliefs. Granting the orders would pre-empt the full trial.

p. 3

Legal principles established

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  • Reinstatement is a final remedy and an applicant must show damages would be inadequate to obtain interim relief staying a termination notice
  • To qualify for interim injunctive relief the applicant must satisfy the Giella v Cassman Brown threshold

Court orders

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  1. 1.The motion dated 2nd November, 2023 is dismissed with costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 3 and 3A
  • Employment and Labour Relations Court ActSection 12; Section 12(3)
  • Employment ActSections 43 and 45

Cases cited (4)

  • Giella v. Cassman Brown
  • Muturi v Havi & 21 others
    (Civil Application E435 of 2021) [2022] KECA 938 (KLR)
  • Joab Mehta Oudia v Coffee Development Board of Trustees
    [2014] eKLR
  • Kinyanjui v Rural Electrication & Renewable Energy Corporation
    [2023] KEELRC 580 (KLR)
Jurisdiction invoked
Section 3 and 3A of the Civil Procedure Act and Section 12 of the Employment and Labour Relations Court 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, "Siso v Governor, County Government of Siaya & 2 others (Cause E085 of 2023) [2024] KEELRC 377 (KLR)", Case Analysis (2024). Cause No E085 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/377/eng@2024-02-29

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