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ELRCDismissedNairobi ELRC Cause No. E010 of 2024· [2024] KEELRC 896 (KLR)

Olwande v Welthungerhilfe e. V (Cause E010 of 2024) [2024] KEELRC 896 (KLR)

Employment and Labour Relations Court
24 April 2024
3,103 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to reinstate a dismissed IT manager or block his job's re-advertisement because he couldn't prove unrecoverable loss.

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/Applicant's Notice of Motion dated 9th January 2024, in which the applicant, summarily dismissed on 27th October 2023 following allegations of falsifying procurement documents, sought an injunction restraining the Respondent from advertising, recruiting and filling the position of Regional IT Manager Africa, and reinstatement to that position pending hearing of the suit. The Respondent opposed the application through grounds of opposition and a replying affidavit sworn by its Country Director, contending that the reliefs were not anchored in the Memorandum of Claim, that no prima facie case was established, and that reinstatement is a substantive remedy unavailable at the interlocutory stage. The court framed two issues: whether the Notice of Motion was fatally defective and whether it was merited. On the first issue, the court found the reliefs had no anchorage in the Memorandum of Claim, offending Order 2 Rule 6 of the Civil Procedure Rules, 2010. Nevertheless, the court proceeded to assess the merits and found a prima facie case with probability of success, but held that the applicant failed to demonstrate irreparable injury, the reliefs in the suit being of a quantified financial nature, and that the balance of convenience did not favour him. On reinstatement, the court agreed it is a substantive remedy not envisioned before full hearing under Section 49(3)(a) of the Employment Act, 2007. The application was dismissed with each party bearing own costs.

Key legal issues

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01

Fatal defect in the Notice of Motion

Holding

The reliefs sought in the application were not anchored in the Memorandum of Claim, offending Order 2 Rule 6 of the Civil Procedure Rules

Reasoning

The court applied the principle that parties are bound by their pleadings and that interlocutory applications must be attuned to the primary pleadings. The applicant neither sought leave to amend nor filed submissions explaining the discrepancy, so the application offended Order 2 Rule 6(1) of the Civil Procedure Rules.

p. 5
02

Prima facie case

Holding

The applicant demonstrated a prima facie case with a probability of success

Reasoning

Despite the pleadings defect, the court assessed the merits and found, on the material before it, that the applicant had shown an apparent infringement of a right calling for rebuttal, satisfying the first Giella v Cassman Brown requirement.

p. 6
03

Irreparable injury and balance of convenience

Holding

The applicant failed to prove irreparable loss or that the balance of convenience favoured him

Reasoning

The supporting affidavit was reticent on the nature of the irreparable loss; the reliefs in the suit were quantified and of a financial nature, hence compensable by damages. Having failed on irreparable injury, the balance of convenience could not favour the applicant under Giella v Cassman Brown.

p. 6

Legal principles established

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  • Interlocutory reliefs must be anchored in the primary pleadings
  • Reinstatement is not available at the interlocutory stage

Court orders

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  1. 1.The Notice of Motion dated 9th January, 2024 is dismissed
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Employment Act, 2007Section 49(3)(a)
  • Civil Procedure ActSection 63(c) and (e); Section 1B
  • Civil Procedure Rules, 2010Order 2 Rule 6; Order 40 Rules (1) and (2); Order 51; Order 21 Rule 1

Cases cited (21)

  • Heiwa Autospares and Distributors Ltd v Barclays Bank of Kenya Ltd
    (2010) eKLR
  • Yang Guang Property Design & Manufacturing Ltd v China Wu Yi Company (K) Ltd
    (2021) eKLR
  • Festus Kyalo Muthiani v Kenyatta National Hospital
    (2013) eKLR
  • Kenya Plantation and Agricultural Workers Union V Kakuzi Ltd
    (2015) eKLR
  • Joab Mehta Oudia v Coffee Development Board of Trustees
    (2014) eKLR
  • Sosten Kipruto Kerich v Monarch Insurance Co. Ltd
    (2018) eKLR
  • World Explorers Safaris Ltd v Cosmopolitan Travel Ltd & another
    (2021) eKLR
  • Dakianga Distributors (K) Ltd v Kenya Seed Co. Ltd
    (2015) eKLR
  • MNM V DNMK & 13 others
    (2017) eKLR
  • Chalicha FCS Ltd v Odhiambo & 9 others
    (1987) KLR 182
  • Kenya Commercial Bank Ltd v Sheikh Osman Mohammed
    CA No. 179 of 2010
  • Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others
    (2014) eKLR
  • Adetoun Oladeji (NIG) v Nigeria Breweries Ltd PLC
    91/2002
  • Raila Odinga V IEBC & 2 others
    (2017) eKLR
  • Giella v Cassman Brown & Co. Ltd
    (1973) EA 358
  • Abel Salim & others v Okong’o and others
    (1976) KLR 42
  • E.A Industries Ltd v Trufoods
    (1972) EA 420
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    (2003) eKLR
  • Habib Bank AG Zurich v Eugene Marion Yakob
    CA No. 43 of 1982
  • Nguruman Ltd v Jan Bonde Nielsen & 2 others
    (2014) eKLR
  • Byran Chebii Kipkoech v Barnabas Tuitoek Bargoria & another
    (2019) eKLR
Jurisdiction invoked
Article 41 of the Constitution of Kenya, 2010; Employment Act, 2007; Civil Procedure Act and Order 51 of the Civil Procedure Rules, 2010

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, "Olwande v Welthungerhilfe e. V (Cause E010 of 2024) [2024] KEELRC 896 (KLR)", Case Analysis (2024). Nairobi ELRC Cause No. E010 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/896/eng@2024-04-24

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