Juliana Mutisya & 2 others v National Gender and Equality Commission & another [2020] KEELRC 407 (KLR)
The bottom line
#The Employment Court in Nairobi ended a long-running unfair termination case because reinstatement had already resolved it, but refused to strike out the claim itself.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there is any surviving cause of action following the reinstatement of the Claimants by the orders issued on 4th February, 2015
- 2.Whether the suit should be struck out
Key legal issues
#Whether the suit was moot after the Claimants' reinstatement, expiry of contract and resignations
Yes - there is no surviving dispute warranting a hearing of the main suit
The Court found that the mandatory injunction of 4th February 2015 reinstating the Claimants had the effect of entirely determining the claim, since the primary prayers (reinstatement, with compensation only in the alternative) had been granted. The subsequent expiry of the 1st Claimant's contract and the voluntary resignations of the 2nd and 3rd Claimants, coupled with the Court's earlier refusal of leave to amend, meant no justiciable controversy survived and hearing the suit would be an academic exercise.
Whether the Statement of Claim should be struck out under Order 2 Rule 15(1) of the Civil Procedure Rules
No - the suit as filed disclosed no ground for striking out; the redundancy arose from later events
Order 2 Rule 15(1) permits striking out where a pleading discloses no reasonable cause of action, is frivolous or vexatious, or is an abuse of process. At the time of filing, the claim was properly constituted; it was only the supervening events of reinstatement, resignation and expiry of contract that rendered the cause of action redundant. Striking out would therefore mischaracterise the pleadings, and the appropriate remedy was a declaration that the suit had abated.
Whether an interlocutory ruling can amount to a final determination of a suit
Normally not, but a mandatory injunction granted at the interlocutory stage may in some cases entirely determine the claim
The Claimants argued that a ruling on an interlocutory application is never a final decree. The Court accepted this is correct in most cases, but held that in exceptional cases a mandatory injunction - which determines the issues in dispute in a summary manner - can conclude the suit, as happened here where reinstatement was the principal relief sought and was granted in full.
Legal principles established
#- A suit may be declared abated where supervening events render the cause of action redundant even though the pleading itself does not qualify for striking out under Order 2 Rule 15(1)
- A mandatory injunction at the interlocutory stage can, in appropriate circumstances, have the effect of entirely determining a claim
Court orders
#- 1.The 1st Respondent's application to strike out the Statement of Claim is declined
- 2.It is declared that the issues raised in the suit have since been resolved so that there is no need to hear the case, and the suit is declared abated
- 3.Costs awarded to the Claimants against the 1st Respondent, limited to instructions fees, disbursements and court attendances only
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Employment and Labour Relations Court (claim for unfair termination, reinstatement and compensation)
Relief refused
#Striking out or dismissal of the Statement of Claim under Order 2 Rule 15(1) of the Civil Procedure Rules
The suit as filed did not fall within the grounds for striking out; the cause of action only became redundant through subsequent events
Order for costs of the application to the 1st Respondent
The Claimants were the successful party, having been reinstated by the court
Costs
Costs awarded to the Claimants against the 1st Respondent, limited to instructions fees, disbursements and court attendances only
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.
It is my finding that it would be purposeless for the Court to hear the suit herein as the employment status of the Claimants have changed as a result of their reinstatement and subsequent resignation and or lapse of contract.
I would thus decline to strike out the suit as prayed in the application herein but instead declare that the issues raised in the suit have since been resolved so that there is no need to hear the case as there is nothing more to decide.
I would however still award costs to the Claimants as against the Applicant herein in view of the fact that they were the successful party, having been reinstated by the court. The costs would however be limited to instructions fees disbursements and court attendances only.
It is only after the events that occurred subsequent to the filing of the suit that the cause of action has become redundant.
Issues in the judgment
#Internal date inconsistency: the judgment twice refers to the reinstatement order of 4th February 2015, but in one place the application grounds refer to an 'Order of 4 th February 2015' while elsewhere the same order is dated 4 th February, 2015; also the Ruling striking out the amendment application is referred to as 'delivered in October 2018' and as 'dated 12th October, 2018'
The names and case number of the parties are not stated in the extract; the 1st Respondent is described only as a constitutional commission
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Juliana Mutisya & 2 others v National Gender and Equality Commission & another [2020] KEELRC 407 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/407/eng@2020-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.