PATRICK NJUGUNA KARIUKI v DEL MONTE (K) LIMITED [2012] KEELRC 54 (KLR)
The bottom line
#A Kenyan employment court refused to delay reinstating a dismissed manager, holding employers cannot prove a job was abolished without notifying the government.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the office of logistics and warehouse manager has been abolished
- 2.Whether the office is vacant
- 3.Whether the claimant would be unable to refund the decretal sum if the appeal succeeds
- 4.Whether on a balance of convenience, the respondent has satisfied the principle of substantial loss
Key legal issues
#Whether the office to which the claimant was to be reengaged had been abolished or filled
The office of Warehouse and Logistics Manager was neither abolished nor filled; the position of Warehouse and Logistics Senior Department Head is a different office, and no notification of abolition or filling was given to the Director as required by sections 76 and 77 of the Employment Act, 2007
Under sections 76 and 77 of the Employment Act, 2007, an employer must notify the Director of vacancies, their filling, or abolition of a post. Failure to prove such notification leads to a finding that the employer has not exercised the entitlement, otherwise the exercise would be arbitrary and outside express statutory regulation. The respondent produced no notification, and the position filled by Samuel Jackson Onyancha was obviously different from the claimant's former office.
Whether the respondent would suffer substantial loss if stay is not granted, including inability to recover the decretal sum
The respondent failed to establish substantial loss. The decretal amount was deposited in court, the claimant demonstrated he owns land and is not a man of straw, and a reengaged employee generates value for the employer
The court noted the deposit in court of the decretal amount and the claimant's ownership of land parcel Makuyu/Kimorori/Block 1/1599. Once reengaged and willing to work, an employee earns pay from productive work; alleging he is a man of straw is 'fishing in the air'. An employer retains the right to terminate lawfully and enjoys the employee's productivity, so reengagement occasions no substantial loss.
What security, if any, could be ordered for stay of an order of reengagement under Order 42 rule 6(2)(b)
It is impossible for the court to order sufficient security for stay of implementation of an order of reengagement, because no computation of pay can cover the employee's human dignity in work or the loss of productive time
Every moment an employee works generates satisfaction and self-esteem, a component of human dignity beyond mere pay. Computation of likely pay and deposit of the same as security falls short. The court cannot foresee intervening circumstances such as lawful termination or frustration of contract, and therefore finds it impossible to order security for stay of an order of reengagement, with or without the parties' assistance.
Whether a genuine appeal exists given the delayed service of the notice of appeal
The respondent's failure to serve the notice of appeal within the prescribed time, without explanation or steps to regularise, indicated bad faith and justified denial of stay
The court held that an applicant for stay must demonstrate the intended appeal is genuinely pursued. The respondent offered no explanation for delayed service of the notice of appeal or for regularising the irregularity. Such conduct impedes the natural flow of justice by suspending the claimant's enjoyment of successful litigation and is impetus for denial of stay.
Legal principles established
#- An employer who fails to notify the Director of the creation, filling or abolition of a post as required by sections 76 and 77 of the Employment Act, 2007 cannot establish that a post was abolished or filled
- An employer does not suffer substantial loss in reengaging an employee, since the employer retains the right to terminate the relationship lawfully and enjoys the employee's productivity
- Security for stay cannot feasibly be ordered in lieu of implementation of an order of reengagement, because no security can cover the employee's human dignity in work or the loss of productive time
- An applicant for stay of execution pending appeal must demonstrate that the intended appeal is genuinely being pursued, with due diligence and prompt correction of irregularities, failing which stay will be denied for bad faith
Court orders
#- 1.The respondent's notice of motion filed on November 9th 2012 seeking stay of execution and implementation of the judgment and decree pending appeal is dismissed
- 2.Costs of the application awarded to the claimant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act, Order 42 Rule 6, and Section 3 of the Industrial Court Act
Relief refused
#Stay of execution and implementation of the judgment and decree pending the hearing and determination of the respondent's appeal
Respondent failed to establish substantial loss; the office was vacant; no adequate security could cover an order of reengagement; and lack of diligence in pursuing the appeal indicated bad faith
Costs
The application is dismissed with costs (costs awarded to the claimant)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion, the respondent’s application by way of the notice of motion filed on November 9th 2012 is dismissed with costs.
An employer does not suffer any substantial loss in reengaging an employee because he is always entitled to terminate the relationship in accordance with the law and the contract between the parties.
it is conceivably very difficult, indeed impossible, for the court to order security for stay of implementation of an order of reengagement
an applicant for stay of execution pending appeal must demonstrate to the court that the intended appeal is genuinely being pursued
failure to prove the notification will lend the court to a finding that the employer has not exercised the entitlement with respect to any of the functions for otherwise, the exercise would be arbitrary and outside the express statutory regulation
Issues in the judgment
#The judgment refers to the notice of motion as dated November 8th 2012 but concludes by referring to it as filed on November 9th 2012
The judgment is signed 'BYRAM ONGAYA JUDGE', which is the same name as the judicial officer; the claimant's name and the cause number are not stated in the judgment text provided
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "PATRICK NJUGUNA KARIUKI v DEL MONTE (K) LIMITED [2012] KEELRC 54 (KLR)", Case Analysis (2012). Industrial Court Cause (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/54/eng@2012-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.