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ELRCPartially AllowedNot stated in judgment· [2024] KEELRC 1233 (KLR)

Okedi & 2 others v National Construction Authority (Cause E154 of 2024) [2024] KEELRC 1233 (KLR)

Employment and Labour Relations Court
7 May 2024
2,597 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court stopped an employer from permanently filling sacked staff positions while their unfair termination case is decided, rejecting the employer's internal appeals argument.

What this practically means

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Executive summary

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Three former Compliance Officers of the Respondent, terminated by letters dated 26th January 2024 after six to seven years of employment, moved the Employment and Labour Relations Court by Notice of Motion dated 26th February 2024 seeking a temporary injunction restraining the Respondent from filling their positions pending hearing of the application and the suit. The Respondent opposed through Grounds of Opposition and submissions, arguing first that the Court lacked jurisdiction because the Claimants had lodged internal appeals to its Board under its HR Manual without awaiting determination, contrary to the doctrine of exhaustion (relying on Geoffrey Muthinja and Albert Chaurembo Mumba); secondly, that no injunction prayer existed in the main suit as required by Rule 17(5) of the ELRC Rules (relying on Abdi Mohammed Daib); and thirdly, that the Giella test was not met, damages under section 49(1) of the Employment Act being adequate, and courts should not interfere with managerial prerogative over recruitment. The Court held that its injunctive power derives from section 12 of the ELRC Act and its own 2016 Procedure Rules, not the Civil Procedure Rules. The pending appeals before an ad hoc Board sitting at its own discretion did not constitute expeditious, efficient, lawful, reasonable and procedurally fair administrative action under the Fair Administrative Actions Act, so the Claimants were entitled to seek recourse in court. Applying Giella, the Court found a prima facie case, potential loss not adequately compensable by damages, and the balance of convenience favouring the Claimants. On 7th May 2024 the Court ordered that the Claimants' positions not be substantively filled pending determination of the suit, fast-tracked the hearing, and ordered costs of the motion to abide the outcome of the suit.

Key legal issues

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01

Jurisdiction - exhaustion of internal remedies and Rule 17(5) objection

Holding

The Court had jurisdiction. It is empowered under section 12 of the ELRC Act to grant interim preservation orders including injunctions, and its own 2016 Procedure Rules apply, not the Civil Procedure Rules. The pending internal appeals before an ad hoc Board sitting at its own discretion did not satisfy the Fair Administrative Actions Act's requirement for expeditious, efficient, lawful, reasonable and procedurally fair administrative action, so the Claimants were entitled to come to court.

Reasoning

The Respondent argued the Claimants had not exhausted internal appeals before its Board, invoking the doctrine of exhaustion, and that no injunction prayer existed in the main suit under Rule 17(5). The Court held its power derives from section 12 of the ELRC Act and its own Rules, not Civil Procedure Rules provisions. Since the Respondent's Board sits only when it deems fit and gave no indication of sitting soon, the internal mechanism was not expeditious or procedurally fair, and the Claimants had a right to seek legal recourse in courts of law.

p. 5
02

Test for grant of temporary injunction

Holding

Applying Giella v Cassman Brown, the Claimants established a prima facie case, potential loss not adequately compensable by damages, and the balance of convenience tilting in their favour, meriting injunctive relief preserving their positions.

Reasoning

The Court applied the three Giella principles. The Claimants were found to have a prima facie case whose success is a matter for trial. On irreparable harm, the loss they may suffer may not be adequately staunched by damages as they seek a slew of reliefs. On the balance of convenience, it tilted in their favour. Having considered the rival interests, the Court was minded to issue injunctive relief restraining substantive filling of their positions pending hearing of the suit.

p. 5

Legal principles established

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  • The ELRC's power to grant interim preservation orders and injunctions flows from section 12 of the ELRC Act and its own Procedure Rules, not the Civil Procedure Rules provisions relied on by a party
  • Ad hoc internal appeal mechanisms that do not promise expeditious determination do not oust the Court's jurisdiction under the exhaustion doctrine

Court orders

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  1. 1.The positions the Claimants held at the Respondent should not be substantively filled pending the hearing and determination of this suit
  2. 2.The case to be fast tracked for hearing to determine whether there is any merit in the suit
  3. 3.Costs of the motion to abide the outcome in the suit

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 12
  • Employment and Labour Relations Court (Procedure) RulesRule 17(5)
  • Employment ActSection 49(1)
  • Fair Administrative Actions ActNot specified
  • Constitution of KenyaArticle 162(2)

Cases cited (10)

  • Abdi Mohammed Daib v Kenya Ports Authority
    [2015] eKLR
  • Giella v Cassman Brown
    [1973] EA 358
  • Wafula v Board of Management, Masimba High School & another
    (Cause E066 of 2023) [2023] KEELRC 2590 (KLR) (25 October 2023) (Ruling)
  • Wamukota v Kenya Electricity Transmission Company Limited & 2 others
    (Petition E213 of 2023) [2023] KEELRC 3068 (KLR) (30 November 2023) (Ruling)
  • Florence A. Odhiambo v Wananchi Telcom Limited & another
    [2017] eKLR
  • Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others
    [2015] eKLR
  • Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others
    [2019] eKLR
  • Owners of the Motor Vessel "Lilian S" v Caltex Kenya Limited
    (1989) KLR 1
  • Jane Kaimuri David v Co-operative Bank Savings and Credit Society Limited
    [2021] eKLR
  • Alfred Nyungu Kimungui v Bomas of Kenya
    [2013] eKLR
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act, 2011; Article 162(2) of the Constitution

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, "Okedi & 2 others v National Construction Authority (Cause E154 of 2024) [2024] KEELRC 1233 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1233/eng@2024-05-07

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