[2013] KEELRC 866 (KLR)
The court found that the orders sought in the motion were too generalized and imprecise to be granted at the interlocutory stage, especially given the existence of strongly disputed facts and law. Granting such orders would effectively determine the merits of the entire cause without a full hearing. The court...
Source-derived case information.
- Citation
- [2013] KEELRC 866 (KLR)
- Parties
- Applicant: Kenya Union of Commercial Food & Allied Workers; Respondent: TAVEVO Water & Sewerage Co. Ltd; Respondent: Coast Water Services Board
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 183 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Motion
- Outcome
- motion dismissed; main cause to proceed to hearing on merits
- Judges
- MSA Makhandia
- Legal Topics
- Unfair Termination, Reinstatement, Interlocutory Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Union of Commercial Food & Allied Workers
Applicant
TAVEVO Water & Sewerage Co. Ltd
Respondent
Coast Water Services Board
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Motion
Legal Issues
- 1 Whether the grievant is entitled to interlocutory orders including reinstatement pending hearing of the main cause.
- 2 Whether the orders sought are capable of being granted at the interlocutory stage given the disputed facts.
- 3 Whether the court should exercise discretion to grant specific performance in a contract of service.
Ratio Decidendi
The court found that the orders sought in the motion were too generalized and imprecise to be granted at the interlocutory stage, especially given the existence of strongly disputed facts and law. Granting such orders would effectively determine the merits of the entire cause without a full hearing. The court emphasized that reinstatement and related remedies are discretionary and should only be considered after a substantive hearing, not on affidavit evidence alone. Accordingly, the motion was dismissed to allow the main cause to proceed to hearing on the merits.
Court Disposition
motion dismissed; main cause to proceed to hearing on merits
Orders
- The motion application dated 24 June 2013 is dismissed.
- The Cause shall proceed to hearing on the merits.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT MOMBASA
(BIMA TOWERS)
CAUSE NO. 183 OF 2013
KENYA UNION OF COMMERCIAL FOOD
& ALLIED WORKERS CLAIMANT
v
TAVEVO WATER & SEWERAGE CO LTD 1ST RESPONDENT
COAST WATER SERVICES BOARD 2ND RESPONDENT
RULING
The Kenya Union of Commercial Food & Allied Workers (Union) filed a Motion under certificate of urgency on 28 June 2013 against TAVEVO Water & Sewerage Co. Ltd (1st Respondent) and Coast Water Board (2nd Respondent).
The motion was seeking
an order restraining the 1st Respondent from issuing any memos, press release or any other action prejudicial and punitive against William Ruto Chebolet (Grievant)
an order to the 1st Respondent to pay the grievant salary arrears pending determination of the application
an order to 1st Respondent to allocate grievant same duties he was previously performing
an order reinstating the grievant unconditionally
an order to pay general damages among other orders.
I certified the motion urgent and directed the Union to serve the Respondents’ for an inter partes hearing. I heard the parties on 31 July 2013.
It is not disputed that the Grievant was suspended on 1 December 2012 and terminated on 27 February 2013. He pleads that the termination was unconstitutional and seeks mainly reinstatement or redeployment.
Reinstatement is one of the primary remedies for unfair termination and or wrongful dismissal. The Grievant had already been terminated at the time he moved to Court and one of the factors the Court ought to consider before ordering reinstatement are the practicability of ordering reinstatement and the common law principle that there should be no order for specific performance in a contract of service except in very exceptional circumstances.
In any case, were the Court to find that the termination of the Grievant was not in accord with both procedural and substantive fairness then the Court can use its discretion to award such compensation as would be just in the circumstances of the case.
The motion sought very generalized and imprecise orders some of which can only be awarded after full hearing and ventilation of the parties’ respective positions.
Determining the issues raised in the motion would most likely dispose of the entire Cause on the merits through affidavit evidence while the pleadings/documents filed show strongly disputed facts and law.
I have duly considered the material placed before Court and reached the conclusion that the motion application dated 24 June 2013 should be dismissed and the Cause proceed to hearing on the merits.
Delivered, dated and signed in open court in Mombasa on this 1st day of November 2013.
Radido Stephen
Judge
Appearances
Mr. Atela (Union official) for Union
Ms. Kariuki instructed by Kioko,
Munyithya, Ngugi & Co. Advocates for 1st Respondent
Mrs. Umara instructed by Munyithya,
Mutugi, Umara & Munza Co. Advocates for 2nd Respondent