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ELRCPartially Allowednot stated in the judgment provided· [2019] KEELRC 16 (KLR)

Barasa Kevin Odanga v CIC Life Assurance Limited [2019] KEELRC 16 (KLR)

Employment and Labour Relations Court
19 December 2019
HWHellen Wasilwa
2,085 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 ruled that an employee cannot get reinstated as a temporary measure while their unfair dismissal case is still pending.

What this practically means

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Executive summary

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The Claimant, Barasa Kevin Odanga, moved the Employment and Labour Relations Court by Notice of Motion dated 21st June, 2019 seeking an ex-parte interim injunction restraining the Respondent from headhunting, advertising, interviewing or recruiting a Head of Sales - Corporate, and reinstatement to that position pending hearing and determination of his claim challenging the termination of his employment on 11th February, 2019. He contended the termination breached the Respondent's HR Policy Manual, the Employment Act and Article 41 of the Constitution, that he was placed on successive compulsory leaves and denied access to information needed to answer a Notice to Show Cause, and that his engagement with Bandari Sacco was undertaken at his supervisor's direction. The Respondent, through a Replying Affidavit of Muyesu Luvai, maintained the Claimant circumvented company procedures, was accorded a disciplinary hearing on 1st February, 2019 and an appeal right he never exercised, and that his role had been merged and reassigned to Rosa Mistica Nyomombi with effect from 15th March, 2019, rendering reinstatement moot. Both parties filed written submissions engaging the Giella v Cassman Brown interlocutory threshold and the authorities on interim reinstatement. Justice Hellen Wasilwa held that reinstatement is a final remedy sought in the main claim and cannot be granted at the interlocutory stage, declined the prayer, and directed the Claimant to proceed with the main claim, with costs in the cause.

Key legal issues

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01

Whether reinstatement is available at the interlocutory stage

Holding

Reinstatement is a final remedy that can only be granted after the main claim is heard on merit

Reasoning

The court reasoned that the reinstatement order sought at the interlocutory stage is a final order which is also sought in the main claim. The Respondent had filled the position by assigning the role of Head of Sales - Corporate and Micro to Rosa Mistica Nyomombi with effect from 15th March, 2019. Granting reinstatement interlocutorily would pre-empt the substantive hearing and render the main claim moot. The court therefore declined the relief and directed the Claimant to proceed to a full hearing of the main claim.

p. 3
02

The threshold for interlocutory relief (Giella v Cassman Brown)

Holding

The parties joined issue on whether the Claimant established a prima facie case with a probability of success, irreparable injury and balance of convenience; the court's written disposition as provided deals with reinstatement rather than the injunction test

Reasoning

The Claimant invoked Giella v Cassman Brown as restated in Nguruman and Mrao, submitting gross procedural violations in the termination process. The Respondent countered that no prima facie case or irreparable injury was established. The judgment as delivered, however, culminates only in a refusal of reinstatement and an order for costs in the cause, without a reasoned finding on the Giella limbs.

p. 2

Legal principles established

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  • Reinstatement is a substantive, final remedy and cannot be granted as an interim measure at the interlocutory stage

Court orders

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  1. 1.Declined to grant the order of reinstatement at the interlocutory stage
  2. 2.Directed the Claimant to proceed with the main claim
  3. 3.Ordered costs in the cause
Jurisdiction invoked
Articles 22, 23, 27, 28, 41, 50 and 159(2)(a) of the Constitution of Kenya, 2010; Section 12 of the Employment and Labour Relations Court Act; Sections 45, 49 and 50 of the Employment Act, 2007; Rules 17 and 28 of the Employment and Labour Relations Court (Procedure) Rules, 2016

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, "Barasa Kevin Odanga v CIC Life Assurance Limited [2019] KEELRC 16 (KLR)", Case Analysis (2019). not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/16/eng@2019-12-19

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