[2018] KEELRC 131 (KLR)
The court held that interlocutory reinstatement is an exceptional remedy, akin to a mandatory injunction, and should only be granted where exceptional circumstances are demonstrated. The court found that the claimant had not shown such circumstances and that reinstatement should generally be considered after a full...
Source-derived case information.
- Citation
- [2018] KEELRC 131 (KLR)
- Parties
- Applicant: Alice Anyango Oguma; Respondent: Nairobi Gymkhana
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1099 of 2018
- Procedural Posture
- Interlocutory Application / Ruling on Application for Reinstatement Pending Hearing
- Outcome
- application dismissed
- Judges
- NJ Abuodha
- Legal Topics
- Unfair Termination, Reinstatement, Interlocutory Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alice Anyango Oguma
Applicant
Nairobi Gymkhana
Respondent
Procedural Posture
Interlocutory Application / Ruling on Application for Reinstatement Pending Hearing
Legal Issues
- 1 Whether the claimant has demonstrated exceptional circumstances to warrant interlocutory reinstatement pending hearing.
- 2 Whether reinstatement should be granted on affidavit evidence before full hearing.
Ratio Decidendi
The court held that interlocutory reinstatement is an exceptional remedy, akin to a mandatory injunction, and should only be granted where exceptional circumstances are demonstrated. The court found that the claimant had not shown such circumstances and that reinstatement should generally be considered after a full hearing where evidence can be tested through cross-examination. Consequently, the application for reinstatement pending hearing was dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The application for reinstatement pending hearing is dismissed with costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF
KENYA AT NAIROBI
CAUSE NO 1099 OF 2018
ALICE ANYANGO OGUMA.........................CLAIMANT
VERSUS
NAIROBI GYMKHANA............................RESPONDENT
RULING
1. In the Notice of Motion dated 29th June, 2018 the claimant sought an order for reinstatement pending the hearing and determination of the claim.
2. The application was brought on the grounds among others that the claimant was unfairly dismissed for overcharging a respondent’s member for wine and that the said shortage was eventually deducted from the claimant’s salary for May 2018. The claimant further complained that the grounds upon which she was dismissed were not in tandem with the accusations in the summary dismissal letter.
3. In the main claim, the claimant seeks reinstatement and in the alternative payment in lieu of notice for termination and one year’s salary as compensation for unfair termination.
4. Reinstatement is akin to mandatory injunction. The court will only order interlocutory reinstatement in exceptional cases. In a proper case, the order ought to be made upon full hearing of the claim and not on contested affidavit evidence which has not been subjected to cross examination. It is the courts view that no exceptional circumstances have been demonstrated by the claimant to warrant the granting of a reinstatement order at the interlocutory stage.
5. The application is therefore found without merit and is hereby dismissed with costs.
6. It is so ordered.
Dated at Nairobi this 30th day of November, 2018
Abuodha Jorum Nelson
Judge
Delivered this 30th day of November, 2018
Abuodha Jorum Nelson
Judge
In the presence of:-
...............................................for the Claimant and
...............................................for the Respondent.