[2018] KEELRC 2017 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MOMBASA

CAUSE NO 161 OF 2018

JOHN ROBERT WALKER............................................................................CLAIMANT

VS

VALAR FRONTIERS (KENYA) LIMITED............................................RESPONDENT

AND

DIRECTOR OF IMMIGRATION SERVICES......INTENDED INTERESTED PARTY

RULING

1. This ruling relates to two applications brought by the Clamant. The first one isdated 22ndMarch 2018 and seeks the following orders:

a) A prohibitive order restraining the Respondent from terminating theClaimant’s employment contract upon expiry of the termination notice;

b) A mandatory order directing the Respondent to reinstate the Claimantback to employment in the position he held as at 25thFebruary 2018without loss of salary and other benefits.

c) A mandatory order directing the Respondent to immediately release theClaimant’s performance bonus of USD 16,000 awarded in October 2017.

2. The second application which is dated 19th April 2018, seeks joinder of theDirector of Immigration Services in these proceedings and an ordersuspending the decision to cancel the Claimant’s Entry Permit No. 066582 ascontained in letter dated 12thApril 2018.

3. The Claimant’s applications are premised on the following grounds:

a) The Claimant was forced by the Respondent’s representatives to resignfrom employment on 25thFebruary 2018;

b) The said resignation under duress and/or undue influence was unlawfuland unfair and amounts to constructive termination of the Claimant’semployment which termination the Claimant is aggrieved with and wishesto challenge before the Court;

c) The Claimant was awarded a performance bonus of USD 16,000 inOctober 2017 which has not been paid;

d) On 26th February 2018, the Respondent’s Chief Executive Officer, GabrielOser wrote to the Director of Immigration Services asking him to cancelthe Claimant’s Entry Permit;

e) Being aware that the Court had issued orders suspending the terminationof the Claimant’s employment, the Respondent had a duty to write to theDirector of Immigration Services to halt the cancellation process;

f) The Respondent, through its Advocates on record, has advised that theClaimant’s Entry Permit has been cancelled by the Director of ImmigrationServices and that the injunctive orders have been frustrated by operationof law;

g) All the Respondent’s actions are calculated to ensure that the Claimant isunable to pursue his claim before the Court thus effectively defeating theClaimant’s efforts to seek justice;

h) The orders issued herein together with the main suit will be renderednugatory and the Claimant will be unable to pursue his legal rightsthrough this case if he is forced to leave the jurisdiction of the Court;

i) The Claimant has a case with a very high probability of success and willsuffer injustice if the orders sought are not granted;

j) The Claimant has a young child currently studying at [particulars withheld] Academy at Mombasa who will suffer irreparably if he is forced out of the School mid term;

k) No prejudice will be suffered by the Respondent if the orders sought are granted;

l) It is in the interest of justice that the orders sought are granted.

4. The Respondent’s response is contained in two replying affidavits sworn by itsChief Executive Officer, Gabriel Oser on 3rdApril 2018 and 28thApril 2018. Hedepones that the Claimant was recruited to provide Security ManagementServices to the Respondent’s client, Base Titanium Limited.

5. Oser further depones that in the first year, the Claimant’s service wassubstantially without much complaint and he was therefore identified to beawarded a performance bonus of USD 16,000 for the period 20thOctober 2016to 19thOctober 2017. He adds that the award of bonus though covering theperiod ending 20thOctober 2017, was to be distributed at the end of thecalendar year.

6. However immediately after the announcement of the bonus award, theRespondent became the subject of audit inspection by the Kenya RevenueAuthority and payment of any bonus had to be suspended until completion ofthe audit exercise. This was communicated to all employees.

7. It is also deponed that in the month of November 2017 subsequent to thedeclaration of bonus payments the Respondent started receiving complaintsfrom its client that the Claimant’s services were deteriorating and that therewas lack of concentration on delivery of services. It wasinter aliaalleged thatthe Claimant was spending much time seeking alternative employment using theclient’s internet facilities as opposed to addressing his assignment. Thecomplaints against the Claimant persisted into February 2018.

8. The Respondent’s Chief Executive Officer, Gabriel Oser and Operations Director,James Dutkowski met the Claimant on 25thFebruary 2018 to informally discusswith him the concerns raised by the client. The Claimant is said to haveintimated that he was aware of the complaints and was planning to leave theRespondent’s employment. Oser and Dutkowski stated that the Respondentwould have no objection to the Claimant’s wish in this regard.

9. The Claimant therefore wrote a resignation letter dated 25th February 2018which was accepted by the Respondent on the same day. Oser denies theClaimant’s averment that he was coerced into resigning by threat of dismissal.He takes the view that the Claimant’s resignation was voluntary.

10. It is further deponed that following the Claimant’s resignation, theRespondent had assigned a suitable replacement to provide services to theclient. The Respondent had gone further to advise the ImmigrationDepartment to cancel the Claimant’s work permit. The Respondent had nointention of accepting the Claimant back.

11. In his further affidavit filed in 19th April 2018, the Claimant denies allegationsof poor performance made against him by the Respondent. He also reiteratesthat the Respondent has no justification to withhold his performance bonus onthe basis of an audit inspection by the Kenya Revenue Authority.

12. In response to the Claimant’s second application seeking to enjoin theDirector of Immigration Services as an Interested Party in these proceedings,plus an order suspending the cancellation of the Claimant’s Entry Permit No.100582, Oser states that the Court cannot suspend that which has alreadybeen effected. He adds that proceedings on suspension of an Entry Permitcannot be sustained under the present cause.

13. According to the Respondent, the cancellation of the Claimant’s work permitfrustrated the injunctive orders issued by the Court on 23rdMarch 2018,meaning that there are no injunctive orders in place.

14. The first application went before the Duty Judge in the Employment andLabour Relations Court at Nairobi,Wasilwa Jon 23rdMarch 2018. The DutyJudge certified the matter urgent and issued an order prohibiting theRespondent from terminating the Claimant’s employment contract, uponexpiry of the termination notice on 25thMarch 2018.

15. The second application went before another Duty Judge, Ongaya J on 20thApril 2018 who granted orders suspending the decision by the Director ofImmigration Services, cancelling the Claimant’s Entry Permit No. 066582 ascontained in letter dated 12thApril 2018.

16. The prayers sought in the Claimant’s twin applications are a mixture ofprohibitive and mandatory injunctions. The conditions under which injunctiveorders generally may be granted are set out in the tested case ofGiella vCassman Brown [1973] EA 358as follows:

a) That the applicant has demonstrated a prima facie case with aprobability of success;

b) That the applicant has shown that they will suffer irreparable injury not adequately compensable by an award of damages if the orders sought are not granted;

c) If the court is in doubt it will decide the application based on the balance of convenience.

17. As a rule, mandatory injunctions will only issue in exceptional circumstances(seeNation Media Group & 2 others v John Harun Mwau[2014] eKLR).

18. The dispute herein was triggered by the Claimant’s letter dated 25th February2018 stating as follows:

“Subject: Resignation Letter

Dear Mr. Oser,

Based on my Employment Agreement I am activating clause 14. 1 Termination by giving 30 days’ notice. I am tendering my resignation for personal reasons effective today, February 25, 2018.

Yours faithfully,

(Signed)

Johnny Walker”

19. By its letter of even date, the Respondent accepted the Claimant’s resignationand tabulated his terminal dues. The following day on 26thFebruary 2018, theRespondent wrote to the Director of immigration Services requesting forcancellation of the Claimant’s Entry Permit No. 066582 on the ground that hisservices were no longer required. By his letter dated 12thApril 2018, theDirector of Immigration Services notified the Respondent that the Claimant’sEntry Permit had been cancelled.

20. It would however appear that the Claimant changed his mind over hisresignation because on the same day, he wrote to the Respondent repudiatinghis letter of 25thFebruary 2018 in its entirety. In the subsequent letter, theClaimant accused the Respondent of constructive dismissal.

21. The question before the Court is whether in the circumstances of the case, theClaimant has made a case for grant of the injunctive orders sought. By thetime the applications were prosecutedinter partes, much water had passedunder the bridge; notably, the Claimant’s Entry Permit had been cancelled andthe Respondent had hired his replacement.

22. It seems to me therefore that cumulatively, the Court is being asked toreinstate the Claimant at the interlocutory stage. There is firm jurisprudencefrom this Court that reinstatement is a substantive remedy to be granted afterfull hearing of the claim before the Court (seeAlfred Nyungu Kimungui vBomas of Kenya [2013] eKLRandLoice Mutai v Kenya Revenue Authority[2017] eKLR). Looking at the pleadings filed by the parties in this case there is asharp divergence on many issues of fact touching on the circumstances leadingto the Claimant’s departure from the Respondent’s employment.

23. In this regard, while the Claimant makes a claim for constructive dismissal, theRespondent presents a case of voluntary resignation. In my view, these arematters of fact which cannot be determined at the interlocutory stage. On thisground, the Court finds that noprima faciecase has been established andcondition number one inGiella v Cassman Brown(supra) has therefore notbeen satisfied.

24. On the question of irreparable harm, the Claimant himself seems aware thathe can actually be compensated by an award of damages which he claims inthe alternative. That would in my view, deal with the second condition inGiellav Cassman Brown(supra)

25. In his oral submissions before Court, Counsel for the Respondent, Mr. Oburatook issue with the manner in which the Claimant had come to court in thesecond application. Counsel pointed out that under the GovernmentProceedings Act, no injunctive orders can issue against the Government otherthan by way of Judicial Review. In response, Mr. Mulaku holding brief for Mr.Asewe for the Claimant submitted that these were matters of technicalitywhich should not be used to defat an otherwise legitimate claim.

26. This in my view, is a peripheral issue which the Court does not need to dwellon in light of the foregoing findings. The only thing I will say therefore is thatthe gate through which a party accesses the seat of justice is no longer amatter of substance. If a party can prove their case, the Court will not lockthem out merely because they have not come through the beaten path.

27. Similarly, these applications do not turn on the question whether the Directorof Immigration Services should be enjoined as an interested party or as arespondent. I say so because, the only role played by the Directorate ofImmigration in a case such as the present one, is to facilitate performance ofthe employment contract. The Director is not a party to such a contract andany complaint against him, would in my view invite separate considerations bythe Court.

28. Having said that and in light of my determination that the Claimant’sapplications have failed the first and second tests inGiella v Cassman Brown(supra), the balance of convenience must tilt in favour of the Respondent.

29. In the end, the Claimant’s applications dated 22nd March 2018 and 19th April2018 fail and are dismissed. The interim orders granted on 23rdMarch 2018and 20th April 2018 are vacated.

30. The costs of both applications will be in the cause.

31. Orders accordingly.

DATED SIGNED AND DELIVERED AT MOMBASA THIS 17TH DAY OF MAY 2018

LINNET NDOLO

JUDGE

Appearance:

Mr. Asewe for the Claimant

Mr. Obura for the Respondent