Kandie & 2 others v Communications Authority of Kenya (Cause 128 of 2015) [2015] KEELRC 64 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Applicants established a prima facie case warranting interim injunctive orders against the Respondent's restructuring, advertising and recruitment
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.
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.
Whether the Applicants would suffer irreparable loss if interim orders were denied
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.
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.
Whether the Respondent's application to set aside the exparte interim orders should be allowed
No; the application dated 20.04.2015 was found to have no merit and the exparte orders remained in force.
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.
Legal principles established
#- 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
#- 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.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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.