[2019] KEELRC 1695 (KLR)
The court found that the applicant's employment had already been terminated before the application for interim relief was filed, making it impossible to grant an order restoring the employment relationship at the interlocutory stage. Under section 49(1) of the Employment Act, 2007, reinstatement is a final remedy...
Source-derived case information.
- Citation
- [2019] KEELRC 1695 (KLR)
- Parties
- Applicant: Francis Kisavo Kanyao; Respondent: Africa Coffee Roasters (EPZ) Ltd; Respondent: Johan H.W. Tollenaar aka Jeroen Tollenaar
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 127 of 2019
- Procedural Posture
- Interlocutory Application / Ruling on Interim Injunction Application
- Outcome
- application dismissed
- Judges
- MSA Makhandia
- Legal Topics
- Interim Injunctions, Termination of Employment, Reinstatement Remedies, Arbitration Clauses
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Kisavo Kanyao
Applicant
Africa Coffee Roasters (EPZ) Ltd
Respondent
Johan H.W. Tollenaar aka Jeroen Tollenaar
Respondent
Procedural Posture
Interlocutory Application / Ruling on Interim Injunction Application
Legal Issues
- 1 Whether the applicant is entitled to interim injunctive relief restraining the respondents from effecting or acting on the oral termination of his employment.
- 2 Whether the court can grant an order preventing the respondents from replacing the applicant as Chief Financial Officer pending the hearing of the claim.
- 3 Whether the existence of an arbitration clause in the employment contract ousts the court's jurisdiction to grant interim relief.
Ratio Decidendi
The court found that the applicant's employment had already been terminated before the application for interim relief was filed, making it impossible to grant an order restoring the employment relationship at the interlocutory stage. Under section 49(1) of the Employment Act, 2007, reinstatement is a final remedy only available after a full hearing on the merits. The court also held that it would not be prudent to restrain the respondents from replacing the applicant, as managerial prerogative should not be hamstrung at this stage, and the mere fact of replacement does not bar reinstatement if ordered after the hearing. The existence of an arbitration clause did not preclude the court...
Court Disposition
application dismissed
Orders
- The application for interim injunctive orders is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 127 OF 2019
FRANCIS KISAVO KANYAO.......................CLAIMANT
v
AFRICA COFFEE ROASTERS
(EPZ) LTD 1st RESPONDENT
JOHAN H.W. TOLLENAAR aka
JEROEN TOLLENAAR......................2nd RESPONDENT
RULING
1. For determination is a motion dated 27 February 2019 by Francis Kisao Kanyao (applicant) seeking orders
1. …
2. …
3. Pending the hearing of the Claim, an injunction be issued to restrain the Respondents from effecting the oral termination of the employment of the Claimant/Applicant and/or removing him from his employment as the Chief Financial Officer of the 1st Respondent.
4. Pending service and hearing inter partes of this application, an injunction be issued to restrain the Respondents whether by themselves, their servants, advocates, agents and/or employees from recruiting, hiring or otherwise replacing the Claimant/Applicant as the 1st Respondent’s Chief Financial Officer.
5. Pending the hearing of this Claim, an injunction be issued to restrain the Respondents whether by themselves, their servants, advocates, agents and/or employees from recruiting, hiring or otherwise replacing the Claimant/Applicant as the 1st Respondent’s Chief Financial Officer.
6. Costs of this application be provided for.
2. When the application was placed before the Duty Court on 27 February 2019, it issued an order restraining the Respondents from effecting the oral notice of termination of employment of the Claimant/Applicant and/or removing him from his employment as the Chief Financial Officer of the 1st Respondent.
3. The order was to last until inter-partes hearing of the application.
4. The Respondents filed a replying affidavit sworn by the 2nd Respondent in opposition to the application, and the Court took oral arguments on 25 March 2019.
5. The Court has given due consideration to all the material placed before it.
6. It is common that the applicant’s employment came to an end on 22 February 2019, when he was informed verbally of the termination of his employment.
7. However unfair or unlawful the action of the Respondents were, this being ordinary employment underpinned by contract and the general law of employment (the Employment Act, 2007), the employment relationship cannot be restored by an order of Court at an interlocutory stage.
8. Under section 49(1) of the Employment Act, 2007, reinstatement or any order akin to reinstatement is a final remedy, issuable after a hearing on the merits (different principles will apply where specific law provides for manner of removal of the employee).
9. The terminationof the applicant’s employment being a fait accompli before he moved the Court cannot be undone at this stage of the proceedings, and must await a hearing on the merits.
10. The applicant also sought orders stopping the Respondents from replacing him.
11. At this stage, the Court cannot tell whether at the end of the day, it would find in favour of the applicant, and make an order of reinstatement, and therefore it would not be prudent to hamstring the hands of the Respondents from exercising their managerial prerogative.
12. In the view of the Court, and there is comparative jurisprudence to that effect (see Volkswagen SA (Pty) Ltd v Brand NO & Ors (2001) 5 BLLR 924 and Manyaka v Van Der Wetering Engineering (Pty) Ltd (1997) 11 BLLR 1458), the mere fact that an employee has been replaced cannot be a bar to an order of reinstatement.
Arbitration
13. The Respondents contended that because the contract of employment provided for arbitration, it was premature of the applicant to move the Court.
14. On the surface, the submission was technically correct, but considering the nature of reliefs/orders which were sought in the interlude, those were outside the mandate of an arbitrator.
15. But now that the interlocutory application is out of the way, the parties may wish to pursue arbitration.
Conclusion and Orders
16. All in all, the Court finds that the applicant has not met the test for grant of interim injunctive orders sought, and the application is dismissed with no order on costs.
Delivered, dated and signed in Nairobi on this 3rd day of April 2019.
Radido Stephen
Judge
Appearances
For applicant Ms. Wanjiru Ngige, instructed by Mohammed Muigai LLP, Advocates
For Respondent Mr. Inyangu, instructed by Ameli Inyangu & Partners Advocates
Court Assistant Lindsey