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ELRCDismissedNot stated in the judgment (ELRC Claim with Notice of Motion dated 5th July 2024)· [2024] KEELRC 2621 (KLR)

Kyalo v Kenya Water Institute & 2 others (Cause E510 of 2024) [2024] KEELRC 2621 (KLR)

Employment and Labour Relations Court
25 October 2024
3,603 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court declined to reinstate a dismissed internal auditor during his case, ruling such orders require exceptional circumstances before full hearing.

What this practically means

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Executive summary

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The Claimant, Felix Ndimu Kyalo, moved the Employment and Labour Relations Court by Notice of Motion dated 5th July 2024 seeking interim orders restraining the Respondents from filling the position of Internal Auditor (job scale KW6) at the 1st Respondent's Kitui Campus and reinstating him to that position pending hearing of his claim challenging termination of employment on 11th June 2024. He argued the termination was effected by the 3rd Respondent without the authority of the 2nd Respondent, contrary to his contract and the Human Resource Policy, and that he was victimized as a whistleblower. The Respondents, through a Replying Affidavit of the Corporation Secretary, maintained the transfer and access restrictions were routine, the Claimant's leave was unprocedurally obtained through an ERP technician, his conduct amounted to gross misconduct, and the 3rd Respondent acted with the blessing of the Governing Council. The court held that interim reinstatement is a mandatory (restorative) injunction grantable only in clear cases and on special circumstances, applying Locabail and Kenyan authorities; the disputes over authority to terminate were contentious and triable, and granting reinstatement would pre-empt the merits. On the conservatory relief, applying the Uhuru Secondary School principles and the Mrao definition of a prima facie case, the court found the Applicant had not established a prima facie case with likelihood of success, and that public interest did not favour restraining a public institution from filling the post. The application was declined with costs in the cause. Only the Applicant's submissions were considered as the Respondents' submissions were missing from the record.

Key legal issues

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01

Whether interim reinstatement should be granted

Holding

No. Interim reinstatement is a mandatory (restorative) injunction requiring special circumstances and a clear case, which were not established; granting it would pre-empt the final determination of the main suit.

Reasoning

The court classified reinstatement of an already terminated employee as a mandatory/restorative injunction. Citing Locabail International Finance Ltd v Agro Export and Kenyan authorities, it held such orders require special circumstances and a high sense of assurance. The dispute over whether the 3rd Respondent had authority to terminate was contentious and triable. Reinstatement at the interim stage would be effectively final, and remedies under Section 12(3) of the ELRC Act remain available at trial, so no irreparable injury arises.

p. 6
02

Whether a conservatory order should preserve the Internal Auditor position pending hearing

Holding

No. The Applicant did not demonstrate a prima facie case with likelihood of success, and restraining a public institution from filling the post was against the public interest.

Reasoning

Applying the Uhuru Secondary School principles and the Mrao definition of a prima facie case, the court weighed the rival accounts of the termination (alleged lack of authority of the 2nd Respondent versus gross misconduct) and found the Applicant had not persuaded it on a prima facie basis. Since the 1st Respondent is a public institution, public interest favoured allowing it to fill the vacant position.

p. 7

Legal principles established

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  • A mandatory injunction will not issue at the interlocutory stage absent special circumstances and in clear cases, and requires a higher sense of assurance than a prohibitory order
  • A prima facie case is a genuine and arguable case showing an apparent infringement of a right calling for an explanation or rebuttal from the opposite party
  • Conservatory orders are granted on the inherent merit of a case, bearing in mind public interest, constitutional values and proportionate magnitudes

Court orders

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  1. 1.The Application dated July 5, 2024, is declined
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Employment Act2007 (general provisions)
  • Employment and Labour Relations Court ActSection 12(3)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (8)

  • New Ocean Transport Limited & Another v Anwar Mohamed Bayusuf Limited
    [2014] eKLR
  • Locabail International Finance Ltd v Agro Export and Another
    [1986] ALL E.R. 901
  • Kenya Breweries Ltd & Another vs Washington O. Okeya
    [2002] eKLR
  • Nation Media Group & 2 Others vs John Harun Mwau
    [2014] eKLR
  • Invesco Assurance Co. Ltd vs MW (Minor suing thro' next friend and mother (HW)
    [2016] eKLR (Nairobi Civil Appeal 151 of 2011)
  • Gatirau Peter Munya v Dickson Mwenda Kithinji and 2 others
    Petition No. 2 of 2014 (eKLR)
  • Board of Management of Uhuru Secondary School vs City County Director of Education & 2 Others
    [2015] eKLR
  • Mrao vs First American Bank of Kenya Limited & 2 Others
    (2003) KLR 125
Jurisdiction invoked
Section 12(3) 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, "Kyalo v Kenya Water Institute & 2 others (Cause E510 of 2024) [2024] KEELRC 2621 (KLR)", Case Analysis (2024). Not stated in the judgment (ELRC Claim with Notice of Motion dated 5th July 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2621/eng@2024-10-25

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