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ELRCDismissedNot stated in judgment (redacted version for Law Report)· [2021] KEELRC 9 (KLR)

VN v APL [2021] KEELRC 9 (KLR)

Employment and Labour Relations Court
20 December 2021
3,187 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court refused to gag an ex-employee's tweets, ruling defamation claims need a separate suit, while barring both parties from posting about the case online.

What this practically means

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Executive summary

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The Respondent/Applicant moved the Court by notice of motion seeking to restrain the Claimant from publishing, on social media or any platform, words making direct or indirect reference to the Applicant, its representatives and officers, contending that the Claimant's tweets between 19th and 21st August 2021 threatened the integrity of the pending proceedings and the Applicant's right to a fair hearing. The Applicant invoked the Court's inherent jurisdiction, section 20(1) of the Employment and Labour Relations Court Act, and constitutional guarantees of fair trial and fair labour practices, relying on authorities including Kenya Power & Lighting Co. Ltd v Benzene Holdings and Cefa Enterprises Ltd on the scope of inherent jurisdiction, and Senator Moses Masika Wetangula v BBC on the limits of freedom of expression. The Claimant opposed, asserting that the alleged defamatory tweets constitute a fresh, severable cause of action with no nexus to the pending employment dispute, citing a prior ruling by Radido J. to that effect, and warning that the orders sought would gag her from discussing her work experience with family, potential employers and therapists. The Court, noting deep tensions between the parties and stated mental health issues, declined the orders, holding that the Applicant ought to have sought review or appealed the decision of Radido J. on the defamation issue. It nonetheless directed that neither party post about the case online, maintained the orders of stay pending appeal, and directed the parties to revert at the end of February 2022 on the appeal's progress.

Key legal issues

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01

Whether the Court should grant restraint orders over social media publications pending determination of the employment suit

Holding

The application was dismissed; the Court found no basis for the grant of the orders, holding that the Applicant ought to have pursued review or appeal regarding the defamation issue decided by Radido J.

Reasoning

The Court observed deep tensions between the parties and noted the tweets contained a latent threat of violence, suggesting a possible defamation suit. However, since a similar motion had been declined by Radido J., who held the defamation allegations formed a fresh cause of action without nexus to the pending issues, the proper course was review or appeal. The Court instead issued informal directions against online postings about the case by either party, given the pending stay and appeal.

p. 3
02

Whether the alleged defamatory tweets are severable from the pending employment cause

Holding

The Court indicated the Applicant seems to make out a good case for a defamation suit, treating the tweets as a distinct matter rather than part of the pending suit.

Reasoning

The Applicant argued the tweets were inextricably linked to the pending suit and invoked the Court's inherent jurisdiction to protect the integrity of its processes, relying on authorities on inherent jurisdiction. The Claimant countered that the alleged defamatory statements constitute a fresh, severable cause of action and that Radido J. had so held on a similar motion. The Court's observation that a defamation suit could lie, coupled with its direction that the Applicant should have sought review or appeal, aligns with the view that the tweets fall outside the pending cause.

p. 3

Legal principles established

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  • A party who seeks to restrain allegedly defamatory publications that constitute a fresh cause of action must pursue review or appeal on that issue rather than protective orders in the pending suit.
  • Where a matter is under a stay pending appeal, neither party may post about the case online.

Court orders

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  1. 1.The application dated 9th November 2019 is dismissed (no basis found for grant of the orders sought)
  2. 2.Directions that there shall be no posting of the goings on of this case online by either party nor tweets in the name of discussing work experiences at the Respondent/Applicant
  3. 3.The orders of stay remain in force
  4. 4.Parties to revert at the end of February 2022 to inform the Court on progress of the appeal
  5. 5.The decision is to be redacted and not published on the kenyalaw website, or parties' names removed, on account of stated mental health issues

Authorities

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Legislation

  • Constitution of KenyaArticle 33 (freedom of expression); provisions protecting right to a fair trial, fair labour practice and fair hearing
  • Employment and Labour Relations Court ActSection 20(1)

Cases cited (5)

  • Richard Muthusi v Patrick Gituma Ngomo & Another
    [2017] eKLR
  • Chairman Co-operative Tribunal & 8 Others Ex-Parte Management Committee Konza Ranching & Farming Co-Operative Society Ltd
    [2014] eKLR
  • Kenya Power & Lighting Company Limited v Benzene Holdings Limited t/a Wyc Paints
    [2016] eKLR
  • Cefa Enterprises Ltd v Benedict Kyalo Kimuyu & 3 others
    [2020] eKLR
  • Senator Moses Masika Wetangula v British Broadcasting Corporation (BBC)
    [2017] eKLR
Jurisdiction invoked
Inherent jurisdiction of the Court and section 20(1) of the Employment and Labour Relations Court Act

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, "VN v APL [2021] KEELRC 9 (KLR)", Case Analysis (2021). Not stated in judgment (redacted version for Law Report). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/9/eng@2021-12-20

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