[2017] KEELRC 1840 (KLR)
The court found that while the claimant had established a prima facie case with a probability of success, he failed to demonstrate that he would suffer irreparable harm that could not be compensated by damages if interlocutory reinstatement was not granted. The applicable law provides for compensation in the event...
Source-derived case information.
- Citation
- [2017] KEELRC 1840 (KLR)
- Parties
- Applicant: Charles Kamande; Respondent: Teachers Service Commission
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1754 of 2016
- Procedural Posture
- Employment Cause / Interlocutory Application for Reinstatement Pending Hearing
- Outcome
- application dismissed
- Legal Topics
- Unlawful Termination, Reinstatement, Interlocutory Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Kamande
Applicant
Teachers Service Commission
Respondent
Procedural Posture
Employment Cause / Interlocutory Application for Reinstatement Pending Hearing
Legal Issues
- 1 Whether the claimant has established grounds for interlocutory reinstatement pending the hearing and determination of the suit.
- 2 Whether damages would be an adequate remedy in the event of unlawful termination.
- 3 Whether the prerequisites for granting a mandatory injunction for reinstatement have been met.
Ratio Decidendi
The court found that while the claimant had established a prima facie case with a probability of success, he failed to demonstrate that he would suffer irreparable harm that could not be compensated by damages if interlocutory reinstatement was not granted. The applicable law provides for compensation in the event of unlawful termination, and reinstatement is generally reserved for extraordinary circumstances. The claimant did not meet the prerequisites for the grant of interim relief, particularly the requirement that damages would be inadequate. As such, the application for interlocutory reinstatement was dismissed.
Court Disposition
application dismissed
Orders
- The application for interlocutory reinstatement is dismissed with costs in the cause.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 1754 OF 2016
CHARLES KAMANDE ……………….……......……….. CLAIMANT
VERUS
TEACHERS SERVICE COMMISSION .…………… RESPONDENT
Mr. Owino for claimant/applicant
Mr. Obura for respondent
RULING
1. The claimant/applicant seeks an interlocutory order of reinstatement to work in the position of Senior Deputy Director supply chain management services with full pay pending the hearing and determination of the suit.
2. It is common cause that the employment of the claimant was terminated on 24th August 2016 for various reasons and the claimant filed a statement of claim on 30th August 2016 in which he seeks an order for reinstatement to work upon declaration that the dismissal was unlawful, null and void.
3. Under Section 12 (3) (vii) of the Employment and Labour Relations Court Act, 2011 as amended by Misc. Amendment Act No. 18 of 2014, the court may make “an order for reinstatement of any employee within three years of dismissal, subject to such condition as the court thinks fit to impose under circumstances contemplated under any written law.”
4. Furthermore, Section 49 (1) (c) of the Employment Act, 2007 provides for compensation to an employee whose employment is found by the court to have been unlawfully terminated for compensation “the equivalent of a number of months wages or salary not exceeding twelve (12) months based on the gross monthly wage or salary of the employee at the time of dismissal.”
5. Keeping the aforegoing in mind, in the case of Giella Vs. Cassman Brown & co. Limited EA 358, has set the preliquisites of granting interlocutory conservatory relief as follows;
a) first an applicant must show a prima facie case with a high probability of success;
b) an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages; and
c) if the court is in doubt, it will decide an application on the balance of convenience.
6. The claimant has established a prima facie case with a probability of success but in view of the applicable law, cited above has failed to demonstrate that he is likely to suffer harm that cannot be remedied by way of damages.
7. Clearly, in the event the claimant’s case is successful he will not only be entitled to an order for reinstatement to his previous job but is entitled in the alternative to compensation equivalent to a maximum of twelve (12) months salary.
8. The claimant therefore has failed to demonstrate that he has met the aforesaid preliquisites for grant of interim relief.
9. It must be noted that it is in very extra-ordinary circumstances that the court will issue a mandatory injunction to reinstate an employee who has been dismissed pending the hearing of the case on merits.
10. The application is dismissed with costs in the cause.
Dated and delivered at Nairobi this 3rd day of February 2017
MATHEWS NDERI NDUMA
PRINCIPAL JUDGE