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ELRCDismissedNot stated in judgment

Khagali v Music Copyright Society of Kenya (Cause E1071 of 2023) [2024] KEELRC 138 (KLR)

Employment and Labour Relations Court
7 February 2024
JRJames Rika
357 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant moved the Employment and Labour Relations Court at Nairobi by an application dated 20th December 2023, supported by his affidavit and a certificate of urgency, seeking certification as urgent, interim reinstatement, a temporary injunction restraining the Respondent from terminating his contract, police assistance in implementing the orders, and any other suitable relief. He alleged unfair dismissal on 30th October 2023. The application was placed before the court on 7th February 2024. The court found the application was not urgent, noting that although the application and the certificate of urgency bore the same date, it reached the court more than a month later. On interim reinstatement, the court held that reinstatement is ordinarily a substantive remedy to be considered after hearing evidence from both parties, not a provisional measure. It relied on Rule 17(10) of the E&LRC (Procedure) Rules, 2016, which bars the court from granting an ex parte order reinstating an employee whose services have been terminated. The court found the Claimant had not demonstrated special circumstances in his affidavit justifying interim reinstatement, and advised him to concentrate on prosecuting his claim and pursuing reinstatement as a substantive remedy. The application dated 20th December 2023 was held to lack urgency and merit and was dismissed with no order on costs, with directions that the Claimant prosecute his main claim. Judgment delivered electronically at Nairobi on 7th February 2024 by James Rika, Judge.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Application dated 20th December 2023 was urgent
  2. 2.Whether the Court could grant interim reinstatement of a dismissed employee
  3. 3.Whether special circumstances justified ex parte interim reinstatement

Key legal issues

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01

Urgency of the application

Holding

The application was not urgent; it was filed over a month after its date

Reasoning

The application and certificate of urgency were both dated 20th December 2023 but were placed before the Court on 7th February 2024, a delay of over a month inconsistent with the claimed urgency.

p. 2
02

Interim reinstatement

Holding

Interim reinstatement refused; the Claimant failed to show special circumstances

Reasoning

Reinstatement is ordinarily a substantive remedy decided after evidence from both parties. Rule 17(10) of the E&LRC (Procedure) Rules, 2016 prohibits ex parte reinstatement orders. The Claimant's affidavit showed no special circumstances justifying interim reinstatement, so he must pursue reinstatement through his substantive claim.

p. 2

Legal principles established

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  • The Court shall not grant an ex parte order reinstating an employee whose services have been terminated
  • Reinstatement is a substantive remedy to be determined after hearing both parties, not a provisional measure

Court orders

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  1. 1.The Application dated 20th December 2023 is not urgent and has no merit
  2. 2.The Application is dismissed with no order on the costs
  3. 3.The Claimant to prosecute his main Claim

The bench

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One judgment of the whole court — no separate or dissenting opinions.

JR
majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the E&LRC (Procedure) Rules, 2016

Relief refused

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Interim reinstatement pending hearing of the main claim

Reinstatement is a substantive remedy, not a provisional measure; Rule 17(10) bars ex parte reinstatement orders

p. 2

Temporary injunction restraining termination of the contract

The application was found to lack urgency and merit

p. 2

Costs

Dismissed with no order on the costs

Quotable passages

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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 ordered: a. The Application filed by the Claimant dated 20th December 2023 is not urgent, and has no merit.
p. 2final orders - dismissal
the Court shall not grant an ex parte order that reinstates into employment, an Employee whose services have been terminated.
p. 2Rule 17(10) E&LRC (Procedure) Rules - no ex parte reinstatement
Reinstatement is ordinarily, a substantive remedy, to be considered on hearing evidence from both Parties. It is not intended to be a provisional measure.
p. 2nature of reinstatement as a remedy
It is dismissed with no order on the costs.
p. 2costs

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, "Khagali v Music Copyright Society of Kenya (Cause E1071 of 2023) [2024] KEELRC 138 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/138/eng@2024-02-07

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