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ELRCPartially AllowedNot stated in judgment (Notice of Motion dated 3rd February, 2015)· [2015] KEELRC 64 (KLR)

Kandie & 2 others v Communications Authority of Kenya (Cause 128 of 2015) [2015] KEELRC 64 (KLR)

Employment and Labour Relations Court
17 December 2015
3,462 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court blocked the Communications Authority from restructuring, advertising or scrapping two directors' jobs until their employment dispute is fully heard.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 3rd February, 2015 in an employment dispute between two senior employees of the Communications Authority of Kenya (Director-level officers Juma Kiprono Kandie and Christopher Kemei) and the Authority. The Applicants sought thirteen interim orders to restrain the Respondent from advertising, renaming, restructuring or scrapping their positions, from recruiting third parties to those positions, and from terminating their employment or declaring them redundant, and to compel publication of notices suspending the newspaper advertisements of the affected posts. The dispute arose from Board Resolutions of 3rd and 16th December, 2014 restructuring the organisation following the transition from the Communications Commission of Kenya to the Communications Authority of Kenya, and newspaper advertisements inviting applications for the renamed positions. The Applicants relied on the Giella v Cassman Brown principles, the doctrine of legitimate expectation (Keroche Industries), the statutory preservation of terms of service under Section 41(2) of the Kenya Information and Communications (Amendment) Act, the redundancy procedure, and their constitutional right to fair hearing. The Respondent opposed, arguing managerial prerogative to restructure, that no termination had occurred and no constructive dismissal or redundancy had yet crystallised, and sought to set aside exparte orders halting recruitment. The Court framed a single issue: whether a prima facie case had been established. Applying Giella as supplemented by the 'lower risk of injustice' test from Suleiman v Amboseli and Films Rover International, the Court found that whether the restructuring was above board could only be determined at full trial, that the Applicants faced irreparable loss, and allowed the application. Orders issued in terms of prayers (vii), (ix), (x), (xi) and (xii); the Respondent's application to set aside the exparte orders was dismissed with costs in the cause.

Key legal issues

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01

Whether the Applicants established a prima facie case warranting interim injunctive orders against the Respondent's restructuring, advertising and recruitment

Holding

Yes. On the chronology and the preservation of the Applicants' terms of service, position and rank through prior transitions, the Court found it could not assess whether the restructuring process was above board without a full hearing, and granted the orders sought.

Reasoning

The Court applied the Giella v Cassman Brown principles but, following Suleiman v Amboseli and Films Rover International, adopted the 'lower risk of injustice' test. The Applicants' positions had historically been preserved in terms of service, position and rank; whether the ongoing restructuring lawfully affected them could not be determined at interlocutory stage. Granting the orders was the less risky course, since the Respondent could still restructure if vindicated at trial, while the Applicants faced potential termination of employment.

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Whether the Applicants would suffer irreparable loss if interim orders were denied

Holding

Yes; the Applicants stood to suffer irreparable loss if the orders were denied and the Court later found it prudent to grant them, since their employment faced termination.

Reasoning

The Court found that denial of the orders followed by a favourable outcome at trial could not be undone - the Applicants' employment stood to be terminated through the recruitment and restructuring process. This irreparable harm tipped the balance towards granting the conservatory orders pending full determination of the claim.

p. 9
03

Whether the Respondent's application to set aside the exparte interim orders should be allowed

Holding

No; the application dated 20.04.2015 was found to have no merit and the exparte orders remained in force.

Reasoning

The Respondent sought to set aside interim orders halting recruitment on the ground that they were prejudicial and irregular and benefited parties not privy to the suit. Having found a prima facie case and that the lower risk of injustice lay in maintaining the status quo, the Court declined to discharge the orders.

p. 9

Legal principles established

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  • The classic Giella v Cassman Brown test for interim injunctions is not cast in stone; courts may apply a further 'lower risk of injustice' test when weighing interlocutory injunctive relief
  • In employment disputes involving restructuring, a court weighing interim relief should opt for the course carrying the lower risk of injustice, and where the fairness of a restructuring process cannot be determined without a full hearing, conservatory orders may issue to preserve the position

Court orders

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  1. 1.Interim orders issued in terms of prayers (vii), (ix), (x), (xi) and (xii) of the Notice of Motion dated 3rd February, 2015, restraining the Respondent from restructure, renaming, scrapping of positions, advertising/recruitment in respect of the listed positions, and from terminating employment or declaring the Applicants redundant, pending hearing and determination of the claim
  2. 2.The Respondent's application dated 20.04.2015 to set aside the interim orders halting recruitment dismissed as lacking merit; the exparte orders remain in force
  3. 3.Costs of the application to be in the cause
Jurisdiction invoked
Employment and labour relations jurisdiction of the ELRC (Application seeking interim orders pending determination of the claim; Applicants invoked Section 41(2) of the Employment Act and Articles 41(2), 47(1) and 236(b) 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, "Kandie & 2 others v Communications Authority of Kenya (Cause 128 of 2015) [2015] KEELRC 64 (KLR)", Case Analysis (2015). Not stated in judgment (Notice of Motion dated 3rd February, 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/64/eng@2015-12-17

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