Kyalo v Kenya Water Institute & 2 others (Cause E510 of 2024) [2024] KEELRC 2621 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether interim reinstatement should be granted
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.
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.
Whether a conservatory order should preserve the Internal Auditor position pending hearing
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.
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.
Legal principles established
#- 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
#- 1.The Application dated July 5, 2024, is declined
- 2.Costs shall be in the cause
- Jurisdiction invoked
- Section 12(3) of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.