https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1110

Edelvale Trust Jamaa Home & Mission Hospital v Thenya & 2 others (Civil Appeal 149 of 2020) [2026] KECA 1110 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KECA 1110 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal 149 of 2020 K M'Inoti, EC Mwita & B Ongaya, JJA June 12, 2026 Between Edelvale Trust Jamaa Home & Mission Hospital Appellant and Sarah Nduta Thenya 1st Respondent Hellen Njeri Kangiri 2nd Respondent Pamela Ndwiga 3rd Respondent (An appeal from the Ruling and Order of the Employment & Labour Relations Court at Nairobi (Wasilwa, J.) dated 5th February, 2018inELRC Cause No. 1804 of 2017 Cause 1804 of 2017 ) Judgment 1.This appeal emanates from the Ruling and Order of the Employment and Labour Relations Court (Wasilwa, J.) delivered on 5th February, 2018. The ruling was issued pursuant to the respondents’ notice of motion dated 7th September, 2017, which had sought a temporary injunction to restrain the appellant and its agents from terminating the respondents’ employment. The learned trial Judge allowed the application. 2.In summary, the respondents filed a suit against the appellant, being ELRC Nairobi Cause No. 1807 of 2020, alleging the unlawfully extended suspension. They simultaneously filed an application by notice of motion under a certificate of urgency dated 7th September 2017, and obtained ex parte orders barring the appellant from terminating their employment. In the said notice of motion, the respondents sought to restrain the appellant and its agents from terminating their employment. They also sought the lifting of their suspension, the release of their salaries, and the continued payment of their monthly salaries by the appellant. The application was based on the grounds that the respondents had been serving an unlawfully extended suspension period without any feedback from the appellant regarding the investigations that had necessitated the suspension. The respondents raised concerns that the appellant’s actions exposed them to impending unlawful termination from their employment. 3.The appellant responded to the impugned application through the replying affidavits of Victor Nemasi and Patrick Gathenya, sworn on 18th October 2017 and 14th November 2017, respectively. Mr. Nemasi averred that the appellant had the right to suspend the respondents for contravening the Code of Ethics and Hospital’s Code of Conduct by failing to accord patients proper care and handling. That by the time the ELRC issued the ex parte orders on 8th September 2017, the respondents had been lawfully terminated on 2nd August 2017 and received termination letters of the same date. Mr. Gathenya, the appellant’s receptionist, averred that the respondents collected their respective termination letters from him on diverse dates but did not acknowledge receipt of the letters because they were not visitors. That by practice, only visitors were required to acknowledge receipt of any letters received from the reception counter. 4.In response to the appellant’s replying affidavits, the 1st respondent swore a further affidavit on 22nd November 2017, asserting that none of the respondents had ever seen the alleged termination letters annexed in Victor Nemasi’s affidavit, and they were therefore not aware of any termination of their employment. 5.The learned trial Judge determined the application dated 7th September 2017 and found in favour of the respondents as follows:“30.These letters were posted to Box 17153- 00510 which is the Respondent’s own address. There is no certification of posting to the Applicant’s addresses and no evidence of receipt of these letters by the Applicants as was indicated in the suspension letters that the decision of the disciplinary committee would be communicated through their registered addresses.31.It is my finding therefore that the Applicants have never been notified of their termination and the orders of 7th September 2017 are still in force.32.In this case then in deciding this matter on a balance of probabilities, the balance tilts in favour of injuncting the Respondent against terminating the services of the Applicants than letting the Applicants to be terminated and later for Courts to find out that they should not have been terminated in the 1st place. In respect of submissions filed by the Respondents, they relate to a situation where termination has already taken effect as in the cases cited.33.Having found that the Applicants have not yet been terminated yet, I find for them and confirm the exparte orders. All withheld salaries be released to the 1st to 3rd Applicants accordingly. The Respondents should henceforth continue to pay the Claimants salaries when they fall due until the claim is heard and determined.” 6.The appellant is aggrieved by that decision and has filed a memorandum of appeal dated 19th March 2020, raising the following eight (8) grounds of appeal:i.That the learned trial Judge erred in law and in fact in totally disregarding the Affidavit of evidence of Patrick Gathenya with respect to issuance of termination letters to the Respondents.ii.That the learned trial Judge erred in law and fact in her conclusion that there was no evidence of the Respondents having received termination letters which conclusion was against the clear affidavit evidence of delivery and receipt of the said letters.iii.That the learned trial Judge erred in law and in fact in finding that the Respondents had met the conditions for the grant of interlocutory prohibitory injunctions.iv.That the learned trial Judge erred in law and in fact in finding that the Respondents had met the conditions for the grant of interlocutory mandatory injunctions.v.That the learned trial Judge erred in law and in fact in granting interlocutory injunctions in a case where the main suit, no prayer for permanent injunction was sought.vi.That the learned trial Judge erred in law and in fact in granting interlocutory injunctions without considering whether the Respondents could be compensated adequately in damages or by other reliefs such as reinstatement and reengagement in event their case succeeds.vii.That the learned trial Judge erred in law and in fact in failing to consider the degree of prejudice that the Appellant was likely to suffer if the Respondents’ Application dated 7th September 2017 was allowed.viii.That the learned trial Judge erred in law and fact in not following the correct and proper legal principles and thereby arriving at a bad decision. 7.The appellant prays that the appeal be allowed; the Ruling and Order of the trial Court dated 5th February, 2018 be set aside; this Court be pleased to dismiss the respondents’ application dated 7th September, 2017; and, that the costs of the current appeal and application in the Superior Court be awarded to the appellant. 8.In its submissions dated 26th February, 2021, the appellant submits that the Superior Court failed to consider the relevant affidavit evidence of Patrick Gathenya, which does not make any reference to the postage of the termination letters. That the Superior Court reached conclusions inconsistent with the evidence that Mr. Gathenya handed the respondents their termination letters. According to the appellant, this warrants this Court’s interference with the Superior Court’s decision as affirmed by the Court of Appeal in Peter M. Kariuki v Attorney General [2014] eKLR. 9.It is the appellant’s argument that the respondents’ impugned application had already been overtaken by events when they sought the interim relief, as their services had been terminated. That the orders issued by the trial Superior Court therefore amounted to reinstating the respondents to employment at an interlocutory stage. 10.The appellant further submits that clause 15 of the Terms and Conditions of Employment of September 1999, titled “Dispute- Grievance Procedures” required the respondents to appeal to the Edelvale Trust before termination of their services is implemented. Since the terms of the said provision bound the respondents, they should have exhausted the internal dispute resolution mechanisms. That the respondents’ failure to appeal the extension of their suspension indicates that the suit and application before the Superior Court were premature, an afterthought and unmerited. The appellant cites Catherine Wanjiru Watoro v Teachers Service Commission & 2 others [2014] eKLR, in which the Industrial Court stated that the court will not normally intervene where an employee fails to exhaust established internal mechanisms to remedy their dissatisfaction. The appellant argues that the respondents consequently failed to prove infringement of a right and to prove a prima facie case with a probability of success. 11.It is the appellant’s submission that the conflicting facts on the respondents’ suspension could not be fully adjudicated upon at the interlocutory stage, but at a full trial, as enunciated by the High Court in African Safari Club Ltd v Kimana Tikondo Group Ranch & 5 others [2012] eKLR. In Loice Mutai v Kenya Revenue Authority [2017] eKLR, the ELRC opined that an employee seeking reinstatement at the interlocutory stage has the burden of proving they deserve it, even in cases where there is need for an employer who has placed an employee on long suspension to explain. The appellant also relies on the case of Idris Aden Mukhtar & 2 others v County Government of Garissa & another [2015] eKLR, in which the ELRC stated that ordering reinstatement of the applicants at the interlocutory stage is equivalent to deciding the case to conclusion. 12.The appellant submits that the respondents did not prove they would suffer irreparable damage if the orders they sought were not granted. It asserts that the respondents would also be entitled to damages as compensation if the trial Court lifted their suspension or reinstated them after a full trial. The ELRC affirmed this position in Fadhil Juma Kisua & another v Kenya Ports Authority [2015] eKLR and Francis Kariuki Njuguna v National Construction Authority [2016] eKLR. The appellant also notes that the Superior Court did not consider whether the appellant would suffer irreparable damage if the respondents are found to have been fairly terminated from employment at full trial. 13.The appellant asserts that the case in the Superior Court was not demonstrated to be a special one necessitating the grant of interlocutory mandatory injunctions. That the conditions for the grant of interlocutory mandatory injunctions can be found in this Court’s decision in Shariff Abdi Hassan v Nadhif Jama Adan [2006] eKLR to effect that:‘…The case of LOCABAIL INTERNATIONAL FINANCE LTD V. AGRO-EXPORT AND ANOTHER [1986] 1 ALL ER 901 sets out the principles applicable in cases of mandatory injunction. It states as follows:“A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could easily be remedied or where the defendant had attempted to steal a match on the plaintiff. Moreover, before granting a mandatory injunction the court had to feel a high sense of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction.”’ 14.Further, the respondents’ application was based on rule 17(5) of the ELRC Procedure Rules, which provides that an applicant can only seek an interlocutory injunction if such an injunction is sought in the main suit. The appellant argues that the respondents’ application dated 07th September, 2017 was therefore incompetent for setting out prayers of injunction when none had been included in their memorandum of claim, as similarly stated by the ELRC in the Fadhil Juma case (supra). 15.The respondents’ submissions are dated 29th March, 2021. They submit that grounds 1 and 2 of the appeal concerning evidence that they received termination letters are issues pending determination before the trial court. That they have prayed for the lifting of their suspension and for payment of their withheld salaries during the suspension period at prayers (i) and (iii) in their memorandum of claim. That this Court’s determination of the said grounds of appeal or issues would affect the reliefs sought in the memorandum of claim. They cite the decision in the case of David Kamau Gakuru v National Industrial Credit Bank Ltd [2002] eKLR by which the Court of Appeal noted that, since the appeal was interlocutory with the suit yet to be tried in the superior court, they would refrain from giving concluded views on any issue that may arise in the intended trial. The respondents urge this Court to refrain from pronouncing itself on grounds 1 and 2 of the instant appeal to allow the superior court to make an independent decision upon the substantive hearing of the suit, including the taking of viva voce evidence from witnesses. 16.According to the respondents, the trial Judge was right to find at the interim stage that they had not been notified of the termination at the time of filing the suit. That the appellant failed to produce the certificate of postage or demonstrate that the termination letters were sent to the respondents’ registered address, as expressly stated in their second suspension letters dated 10th August 2017. The learned Judge thus relied on evidence presented before her to reach the determination, albeit at the interlocutory stage. 17.It is the respondents’ submission that the grounds for issuance of an interlocutory injunction have been settled in several decisions of this Court. In Giella v Cassman Brown & Co Ltd [1973] 1 EA 358 (CAK), the Court set the grounds to be: whether the applicant has established a prima facie case; whether the applicant will suffer irreparable damages if the interlocutory injunction sought is not granted; and if the court is in doubt, it should decide the application on a balance of convenience. 18.It is submitted for the respondents that they established a prima facie case by showing that they had served a total of 52 days’ suspension at the time of filing the claim before the trial court. Further, that was contrary to the appellant’s Rules and Regulations on Suspension, which caps a suspension at 30 days and provides that a suspended employee receives half salary. That even considering the appellant’s submission that the respondents were terminated on 24th August, 2017, the days served on suspension would be 38, which still exceeds the stipulated 30 days. It is further submitted that their suspension without pay exposed them to suffering irreparable injury. The appellant subjected them to financial oblivion with uncertainty on the status of their disciplinary procedure and employment. Since the appellant’s regulations do not anticipate an indefinite suspension or any cure thereof, the trial court needed to intervene at the interim stage. Thirdly, the learned trial Judge found that the balance of probabilities tilted in favour of the respondents after considering the parties’ averments and submissions. It was urged for respondents that granting the injunctive order was a lower risk to avoid any injustice before hearing and determination of the main suit. The respondents urge this Court to be persuaded by similar findings of the High Court in Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 others [2016] eKLR, that the court considers which party will suffer the greater harm with the outcome of the motion. 19.The respondents refute that the appellant’s Terms and Conditions of Employment provide for appeal on suspension. They note that the only issue appealable under clause 15 on Dispute Grievance Procedures is if an employee is dissatisfied with termination of employment, which in their case had not arisen when they lodged the suit in the Superior Court. They submit that, further under clause 15 of the appellant’s Rules and Regulations on suspension, they are only required to appeal against the decision emanating from the investigations. In their case, the appellant had not made any decision and had turned their suspension into an indefinite one against its own rules and the rules of natural justice. The respondents also urged this Court to find that the first part of clause 15 (on dispute grievance procedures) only refers to a dissatisfied employee who feels unfairly treated to initiate negotiations from the level of an immediate supervisor upwards, culminating in the HR office. That such negotiations do not constitute a provision for appeal. 20.The respondents submit that the appellant has not indicated the specific interlocutory mandatory injunction it is appealing against. That in Kenya Breweries Ltd & another v Washington O. Okeyo [2002] eKLR, the Court of Appeal affirmed the position that a mandatory injunction will be granted on an interlocutory application if, inter alia, the defendant attempted to steal a match on the plaintiffs. That in this case, the appellant tried to steal a match against the respondents by refusing to pay them their half salary during their suspension, condemning them to an indefinite suspension against its own rules, and doctoring termination letters as an afterthought to defeat the interlocutory court orders. The respondents argue that, therefore, the trial learned Judge did not misdirect herself in directing for a specific performance of the appellant’s own contract. 21.It is the respondents’ submission that the interlocutory injunction against the appellant terminating their employment was pegged on prayer (i) in their memorandum of claim, on lifting of their suspensions, and passes the test in Rule 17(5) of the ELRC Procedure Rules. Further, the mandatory injunction was meant to preserve the reliefs sought in the main cause, as affirmed by this Court in Lucy Wangui Gachara v Minudi Okemba Lore [2015] eKLR, persuaded by the holding in Nandan Pictures Ltd. V Art Pictures Ltd & others, AIR 1956, CAL 428, Chakravartti, CJ. of the High Court of Calcutta. 22.The respondents state that in granting interlocutory orders, the Superior Court was exercising a judicious discretion, which discretion was concisely discussed by the Court of Appeal in Mbogo & another v Shah [1968] EA 93. In the Lucy Wangui Gachara case (supra), this Court held that an appellate court will not interfere with the trial court’s exercise of discretion even if it would have reached a different conclusion. In United India Insurance Co Ltd, Kenindia Insurance Co Ltd & Oriental Fire & General Insurance Co Ltd v East African Underwriters (Kenya) Ltd [1985] eKLR, the Court of Appeal found that it is only entitled to interfere with a discretionary decision if it establishes that: the judge misdirected himself in law; misapprehended the facts; took account of considerations he should not have taken account; failed to take account of considerations he should have; or his discretionary decision is plainly wrong. The respondents argue that, since the appellant has failed to demonstrate that the learned trial Judge erred in any of the foregoing five sets enumerated in the United India Insurance Co. Ltd case (supra), this Court should not interfere with the discretion of the Superior Court. 23.The respondents also note that the appellant has failed to inform this Court that after the impugned ruling of 05th February, 2018 by the Superior Court, the appellant filed an application on 01st March, 2018, upon which the court rendered a ruling on 27th September, 2018. The Superior Court granted stay on condition that the appellant pay the respondents the salary payable up to the date of the ruling, and that the respondents be deemed to be on interdiction and entitled to half pay pending hearing and determination of the appeal (see Sarah Nduta Thenya & 4 others v Edelvale Trust Jamaa Home & Mission Hospital [2018] eKLR). The respondents submit that the appellant has disregarded the said Superior Court’s orders of 27th September, 2018 and refused to pay them half salary. That the current appeal is aimed at delaying the expeditious determination of the main suit, thereby subjecting them to indefinite poverty. That since the appellant has approached this Court seeking equity with unclean hands and having not accorded them equity, the appellant should be condemned to pay costs for this appeal. 24.When this appeal came up for hearing before us on 10th March, 2026, there was no appearance for the appellant, while learned counsel Mr. Momanyi appeared for the respondents. The appellant’s counsel while absent at the hearing and despite due service of the hearing notice on 24th February, 2026, had nevertheless, filed the appellant’s submissions. Mr. Momanyi opted to rely on the respondent’s written submissions. 25.We have considered the parties’ respective written submissions and the record of appeal. We have reminded ourselves about the scope of our jurisdiction in this interlocutory appeal and as correctly highlighted in the submissions for the respondent with reference to the United India Insurance Co. Ltd case (supra). As was held in that case, we should not interfere with the trial Court’s decision unless the applicant establishes that the trial Judge misdirected herself in law; misapprehended the facts; took account of considerations she should not have taken account; failed to take account of considerations she should have; or, her discretionary decision is plainly wrong. Our role in such interlocutory appeal against grant or denial of an interlocutory injunction is only to review the trial court’s decision as to whether the trial Judge properly exercised her discretion under the established principles for grant of injunctions. Our role is not to re-try the case or re-evaluate the ultimate merits, but rather we are restricted to determining whether the trial judge exercised the judicial discretion properly, applied the correct legal principles, and did not arrive at a plainly wrong decision. We are alert that the trial Court has not rendered a final judgment on the issues in dispute in the pending suit between the parties. Accordingly, in this judgment on an interlocutory appeal we cannot make definitive findings of fact or law that may prejudice or embarrass the main trial of the pending suit. 26.We have considered the grounds of appeal in the memorandum of appeal and summarize the issues for determination as follows:a.whether the application for injunction before the trail court was premature for want of exhaustion of the internal dispute grievance procedures;b.whether the application for injunction would be defeated because the respondents failed to plead for grant of injunction in the statement of claim;c.whether the respondents’ application for injunction satisfied the principles regarding the grant of temporary interlocutory injunctions; and,d.whether the appellant is entitled to the remedies as prayed for in the instant appeal. 27.The appellant has urged that the jurisprudence of this Court is that the courts will not intervene in exercise of employer’s lawful or contractual prerogatives unless the applicant shows that the employer’s or contractual internal mechanism for dispute resolution has been exhausted. The respondents do not dispute the applicable principle but urge that in the instant case, the appellant’s clause 15 of the Terms and Conditions of Employment provided for “appeal” in event of termination and not suspension. It is the respondent’s case that they had not been terminated but had only been suspended so that the clause did not apply. While referring to the clause as providing for “appeal” and in a manner we find to be rather contradictory, it was submitted for the respondents that the clause did not strictly provide for an appeal procedure because it provided for a graduated process where the matter is raised first with the immediate supervisor and where termination of employment is concerned, may make an appeal to Edelvale Trust. 28.The relevant clause 15 provides as follows,“15.Dispute – Grievance ProceduresWhere a member of staff feels that he/she has not been fairly treated, in relation to any aspect of his employment in the organization, the matter should be raised first with his/her immediate supervisor. If no satisfactory solution is reached the matter should be referred to the Departmental Head and thereafter, if necessary to the Project Head. At this final stage, the staff may request the matter to be referred to the Human Resources Officer, but keeping the head of Project informed.In circumstances where termination of employment is concerned, the staff may make an appeal to the Edelvale Trust for final decision before the action to terminate the service is implemented.” 29.In the notice of motion dated 7th September 2017 being the application for injunction before the Superior Court, the respondents’ grievance was that they had been suspended by the letter dated 10th August, 2017 at a time they had already served a 23-days’ suspension with the consequence that by end of the extended suspension they would have served 43-days’ suspension (beyond the contractual 30-days’ maximum suspension) without the appellant having communicated to the respondents the outcome of the disciplinary hearing which had taken place. Their further grievance as stated in the motion was that they were apprehensive that the alleged malicious action of the appellant had put them at imminent danger of being unlawfully terminated from their employment because, “…the unlawful extension of their suspension is in bad faith and portrays the intentions of the Respondent.” 30.We have considered the respondents’ grievance against the provisions of clause 15 of the Terms and Conditions of Employment and find that the trial court did not adequately address the question whether the Dispute Grievance Procedure was indeed genuinely available but was not invoked at all. The respondents had been put on suspension and if indeed they had not been terminated, the grievance procedure remained applicable because they continued to be employees and clause 15 was available. The trial court ought to have considered whether an employee on an excessively prolonged or indefinite disciplinary suspension is fully entitled to challenge the employer's action and whether such a dispute or grievance is subject to contractual or internal employer’s grievance mechanisms. We note that in the present case, the Dispute Grievance Procedure expressly provided that even if the respondents may have been terminated, they had an option to make an appeal to the Edelvale Trust for final decision before the action to terminate the service was implemented. While clause 15 uses “should” and “may” as connoting permissive and elective words which suggest that it was not mandatory to invoke the procedure, it is plausible that the clause provided for the fair and genuine contractual and policy arrangements between the appellant and the respondents for resolving the kind of grievance that was in issue. Unless for good reason shown such as impossibility to invoke and genuinely implement the provision or if implemented, manifest injustice would be occasioned to the respondents, the court should have considered whether such provision ought to have been invoked as an appropriate arrangement between the parties. 31.We have already stated that the trial court did not seriously consider whether the respondents’ failure to invoke and exhaust the genuine Dispute Grievance Procedure undisputedly prevailing between the appellant and respondents operated as a bar to intervention by the trial Court. While the trial Court noted the appellant’s concerns in that respect at paragraphs 14 and 15 of the impugned ruling, it appears that the same was not thereafter considered at all in arriving at the final decision, which we find to have otherwise been an important consideration for the trial Court to have taken into consideration. In those circumstances, we agree with the appellant’s submission that the injunction ought not to have been granted. 32.The second issue is whether the application for injunction would be defeated because the respondents failed to plead for grant of injunction in the statement of claim. The appellant has invoked Rule 17(5) of the then prevailing Employment and Labour Relations Court (Procedure) Rules, 2016 which provided as follows,“17.(5)In a suit where an injunction is sought, a claimant or applicant may at any time in the suit, apply to the Court for an interim or temporary injunction to restrain the respondent from committing a breach of contract or an injury complained of or any injury of a like kind arising out of the same contract or relating to the same property or right.” 33.The respondents’ main grievance was the prolonged or extended suspension beyond the contractual maximum of 30 days. Their related grievance was the termination that was likely to ensue and which they alleged would be unfair, malicious or unlawful. In the application for temporary injunction they prayed for several orders pending the hearing and determination of the suit including restraining the appellant and its agents from terminating the employment of the respondents; from threatening the respondents on the intended termination; from intimidating, harassing or interfering in any manner whatsoever with the respondents’ employment; the Court to lift the suspension of the respondents; and, the Court to order the appellant to release the salary of the respondents and to continue paying the respondents’ salary. 34.In allowing the application for temporary orders per the ruling read on 5th February, 2018, the trial Court ordered as follows,“33.Having found that the Applicants have not yet been terminated yet, I find for them and confirm the exparte orders. All withheld salaries be released to the 1st to 3rd Applicants accordingly. The respondents should henceforth continue to pay the Claimants salaries when they fall due until this claim is heard and determined. 34. Costs in the cause.” 35.The ex parte orders of 8th September, 2017 and which were confirmed in the ruling were to the effect that a temporary injunction was issued restraining the appellant and its agents from terminating the employment of the respondents; and, a temporary injunction issued restraining the appellant and its agents from threatening the respondents on the intended termination. 36.The respondents do not dispute that they were required to plead for an injunction in the main suit as urged for the appellant. The pertinent issue for our determination is whether, in terms of the cited rule 17(5), the respondents had prayed for an injunction in the statement of claim constituting the main suit, with respect to restraining the appellant from terminating their employment, restraining the appellant from threatening them on intended termination; and compelling the appellant to pay withheld salaries and to continue such payment. 37.It is submitted for the respondents that the interlocutory injunction against the appellant terminating their employment was pegged on prayer (i) in their memorandum of claim, on lifting of their suspensions, and passes the test in the cited rule 17(5). Prayer (i) in the memorandum of claim states, “(i) Lifting of the 1st, 2nd, and 3rd Respondents’ Suspension”. The Court finds that the wording of the prayer did not amount to a prohibitory or mandatory injunction with respect to the suspensions in issue. We are alert that we must not delve into any matter that may prejudice or embarrass the hearing and determination of the pending main suit. It is sufficient to find that the cited rule 17(5) required an applicant seeking an interlocutory restraining injunction to meet the strict safeguard that the trial Court can only grant the temporary injunction if the applicant specifically included a prayer for a permanent injunction in the main substantive suit but which we find the respondents to have failed to satisfy. The essence of the rule is that there should exist a practical consistency between the prayers in the application and the main suit so that the prayer for temporary restraining injunction in the application must mirror or directly correspond to final injunctive order requested for in the main statement of claim or memorandum of claim. Upon this finding, it therefore appears to us that the trial Court failed to consider the mandatory safeguard embedded in the cited rule with the consequence that the temporary injunctions as were given should not have been granted. 38.The next issue for our determination is whether the respondents’ application for injunction satisfied the principles regarding the grant of temporary interlocutory injunctions. The Landmark case of Giella v Cassman Brown & Co Ltd [1973] 1 EA 358 (CAK) is still the relevant and applicable jurisprudence. The case related an employment dispute like the instant appeal. Giella was employed by Cassman Brown in Kampala under a contract that contained a restrictive covenant which barred Giella from working for a competing company within a specified radius of major towns in East Africa in event his contract was terminated. His contract was terminated and thereafter, Giella accepted a job with a direct competitor located on the same street in Kampala. Cassman Brown sued to stop him and sought a temporary injunction to enforce the restraint of trade clause. The injunction was initially granted by the High Court but upon appeal, the East African Court of Appeal overturned the decision by establishing three cardinal principles that must be proved before a court can grant a temporary injunction. First, the applicant must establish a prima facie case with a strong probability of success at trial. Second, the applicant must prove he or she will suffer irreparable harm or loss if the injunction is not granted and which harm cannot be adequately compensated by an award of damages. Third, if the court is in doubt on the first two conditions, it will decide the matter based on the balance of convenience, based on which party will suffer more harm depending on the Court’s decision. In that case, the Court of Appeal applied the principles and held that the dispute was purely commercial and any loss of business could easily be compensated by financial damages. The Court of Appeal found that no irreparable injury existed and the injunction was denied. 39.We similarly apply the principles as settled by the East African Court of Appeal. The appellant and the respondents were in a contract of employment which was a purely commercial dispute which in absence of unique circumstances established for the respondents, their injury could readily and easily be remedied through compensation by financial damages. If, after the full hearing of the main suit, the suspension was found to be in breach of the contract and if the suspension and any ensuing termination of the employment contract were found to be in breach of the contract, unfair or unlawful, it appears to us that an award of damages would be an effective and adequate remedy. In absence of an irreparable injury that cannot be adequately compensated by an award of damages, we find that the temporary injunctions or orders should not have been granted. As submitted for the respondents, their grievance was that the extended suspensions precluded them from earning. It is our considered view that if the extended suspensions and ensuing terminations were found unfair or unlawful as was alleged, then pecuniary compensation would fully remedy the injury suffered by the respondents based on the contract of service which was a purely commercial relationship. 40.We further find that the respondents had not established a prima facie case with a probability of success in view of our earlier findings that the safeguards in the cited rule 17(5) had not been satisfied and, the respondents had failed to exhaust the internal Dispute-Grievance Procedures. Further, termination letters were on record and the only dispute was whether the termination letters had been delivered to the respondents. The respondents had admitted that they had attended a disciplinary hearing. In such circumstances we find that as submitted for the appellant, an order in the nature of a mandatory interim injunction ought not to have be granted on an interlocutory application in the absence of special circumstances. It was not a clear case either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could easily be remedied or where the defendant had attempted to steal a match on the plaintiff. 41.We find that the issues of whether the suspension was in breach of the contract of service and whether termination had been imposed and duly communicated were seriously contested per the parties’ respective affidavit evidence and could be decisively decided, one way or the other, only after testing of the evidence at the full hearing. We find that it was not a case whereby at the interlocutory stage, the trial Court could properly have had a high sense of assurance that at the full trial it would appear that the mandatory injunction in the nature of an interlocutory reinstatement or lifting of the suspension of the respondents back to employment (with payment of salaries when they fall due until the claim was heard and determined) had rightly been granted at the interlocutory stage. 42.We will not delve into considerations of the balance of convenience because the respondents are found to have failed to satisfy the preconditions of establishing a prima facie case and irreparable injury incapable of pecuniary compensation. 43.We have considered that the appellant’s counsel was served the notice to attend the hearing of the appeal but was absent. The parties will therefore bear own costs of the appeal. 44.In the premises, we hereby allow the appeal; set aside the impugned ruling of the Superior Court delivered on 5th February, 2018 together with the orders and processes flowing therefrom; dismiss the respondent’s application dated 7th September, 2017 with costs in the cause; and, parties to bear own costs of the appeal. 45.We order accordingly. DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JUNE, 2026.K. M’INOTI........................................JUDGE OF APPEALE. C. MWITA........................................JUDGE OF APPEALB. ONGAYA........................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR