Okedi & 2 others v National Construction Authority (Cause E154 of 2024) [2024] KEELRC 1233 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction - exhaustion of internal remedies and Rule 17(5) objection
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.
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.
Test for grant of temporary injunction
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.
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.
Legal principles established
#- 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
#- 1.The positions the Claimants held at the Respondent should not be substantively filled pending the hearing and determination of this suit
- 2.The case to be fast tracked for hearing to determine whether there is any merit in the suit
- 3.Costs of the motion to abide the outcome in the suit
- Jurisdiction invoked
- Section 12 of the Employment and Labour Relations Court Act, 2011; Article 162(2) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.