Solomon Gichung’wa Njuguna v Sybrin Kenya [2021] KEELRC 1494 (KLR)
The bottom line
#A Kenyan employment court refused to reinstate a suspended bank employee before trial, confirming reinstatement is a final remedy that requires a full hearing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the claimant's suspension should be lifted and he be reinstated pending the hearing and determination of the application and claim
- 2.Whether the respondent should pay the claimant's withheld emoluments during the period of suspension
- 3.Whether an injunction should issue restraining the respondent from terminating the claimant's employment pending the hearing
Key legal issues
#Whether reinstatement and payment of emoluments can be granted on an interim basis
No; reinstatement is a final order akin to specific performance, regulated under section 12(3)(vii) of the ELRC Act, section 49(4) of the Employment Act and Rule 17(10) of the ELRC Procedure Rules, and cannot issue in the interim
The court held that reinstatement is by nature a final remedy reserved for the conclusion of the claim. The disputes between the parties span over nine years, covering suspension, arrears and alleged constructive unfair termination. Deciding these on affidavit evidence alone would deprive the court of crucial and material evidence and cross-examination, and would not aid the course of justice.
Whether the long-pending disputes should be resolved on the affidavits or at a full hearing
The matters should be interrogated at a full hearing to allow the court to be seized of all facts before issuing a final decision
While suspension is an administrative prerogative of the employer and the employer ought to respond once matters are addressed, the disputes here span over nine years. The claimant alleges continued suspension and non-payment; the respondent alleges desertion and other employment. These contested factual issues require evidence and examination that affidavits cannot supply.
Legal principles established
#- Reinstatement is a final remedy regulated by statute and should not be granted on an interim basis before a full hearing
- Allegations of constructive and unfair termination require the taking of evidence before a court can make a finding
Court orders
#- 1.The application by the claimant dated 30th October, 2020 shall not be allowed at this instance, save the claim shall be heard on priority
- 2.The parties are allowed the next 14 days to file their witness statements and list of documents to be relied upon at the hearing
- 3.Pleadings to close within 21 days
- 4.Upon compliance with (a) and (b) a hearing date shall be allocated at the registry
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court Act, 2011, section 12; Employment Act, 2007, section 49(4); Employment and Labour Relations Court (Procedure) Rules, 2016, Rule 17(10)
Relief refused
#Order for immediate reinstatement pending inter partes hearing and determination
Reinstatement is a final order akin to specific performance and cannot issue on an interim basis
Payment of withheld emoluments during suspension
To proceed on affidavits and submissions would deny the court crucial evidence; disputes spanning over 9 years require a full hearing
Injunction restraining termination of employment
Matters in dispute should be interrogated at a full hearing before final orders issue
Costs
No order on costs recorded; costs were sought under prayer 5 of the application but no costs order appears in the final orders
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.
The claimant hence seeking reinstatement, such cannot issue in the interim as this requires specific performance and in its nature a final order regulated under section 12(3)(vii) of the Employment and Labour Relations Court Act, 2011
To proceed and issue the orders sought in the interim will not aid the course of justice.
Accordingly, application by the claimant dated 30th October, 2020 shall not be allowed at this instance save the claim shall be heard on priority and the following directions and orders are hereby issued;
Issues in the judgment
#The judgment records two different dates for the claimant's acquittal: 6th December, 2019 and 9th December, 2019
The respondent's name is not stated in the extracted judgment; the parties are referred to only as 'the claimant' and 'the respondent'
The claimant's date of employment is inconsistently stated as 3rd November, 2010 and 30th November, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Solomon Gichung’wa Njuguna v Sybrin Kenya [2021] KEELRC 1494 (KLR)", Case Analysis (2021). Notice of Motion dated 30th October, 2020 (within Memorandum of Claim). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1494/eng@2021-02-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.