[2018] KEELRC 701 (KLR)
The court is expressly prohibited by Rule 17(10) of the Employment & Labour Relations Court (Procedure) Rules 2016 from granting ex parte orders of reinstatement to employees whose services have been terminated. As the Claimant's application for reinstatement was brought ex parte, the court lacks jurisdiction to...
Source-derived case information.
- Citation
- [2018] KEELRC 701 (KLR)
- Parties
- Applicant: Kenya Union of Sugar Plantation and Allied Workers; Respondent: West Kenya Sugar Company Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 369 of 2018
- Procedural Posture
- Employment Cause / Interlocutory Application for Reinstatement
- Outcome
- Application for ex parte reinstatement declined; directions issued for inter partes hearing.
- Legal Topics
- Reinstatement, Summary Dismissal, Disciplinary Process, Ex Parte Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Union of Sugar Plantation and Allied Workers
Applicant
West Kenya Sugar Company Limited
Respondent
Procedural Posture
Employment Cause / Interlocutory Application for Reinstatement
Legal Issues
- 1 Whether the court can grant an ex parte order for reinstatement of an employee whose services have been terminated.
- 2 Whether the Claimant's application for reinstatement meets the threshold for interim relief.
Ratio Decidendi
The court is expressly prohibited by Rule 17(10) of the Employment & Labour Relations Court (Procedure) Rules 2016 from granting ex parte orders of reinstatement to employees whose services have been terminated. As the Claimant's application for reinstatement was brought ex parte, the court lacks jurisdiction to grant the relief sought at this stage. The proper procedure is for the application to be served upon the Respondent, who must then be given an opportunity to respond before the matter can be heard and determined on its merits.
Court Disposition
Application for ex parte reinstatement declined; directions issued for inter partes hearing.
Orders
- The application shall be served upon the Employer/Respondent.
- Respondent shall, within 7 days of service, file and serve its Replying Affidavit and/or Grounds of Opposition.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT
AT KISUMU
CAUSE NO. 369 OF 2018
(Before Hon. Justice Rika)
KENYA UNION OFSUGAR
PLANTATION AND ALLIED WORKERS..................CLAIMANT
=VERSUS=
WEST KENYA SUGAR COMPANY LIMITED.....RESPONDENT
RULING
The Claimant prays in the Application filed on 31st October 2018, for reinstatement of the Grievant Peter Umbuku Muyaka, to the position of Electrician, by the Respondent Company.
The Grievant was dismissed through a letter of summary dismissal dated 18th October 2018, after a disciplinary hearing process.
Rule 17 (10) of the Employment & Labour Relations Court (Procedure) Rules 2016 states:-
“Notwithstanding anything contained in this Rule, the court shall not grant any ex parte order that reinstates into employment an employee whose services have been terminated.”
This Rule prohibits, in mandatory terms, the court from giving exparte orders of reinstatement. The court cannot therefore grant the Claimant’s Application ex-parte.
IT IS ORDERED:-
a. The Application shall be served upon the Employer/Respondent.
b. Respondent shall, within 7 days of service, file and serve its Replying Affidavit and/or Grounds of Opposition.
c. Thereafter parties to take a mutually convenient date for hearing, before the Hon. Justice Nderi.
Ruling Dated, Signed and Delivered this 5th day of November, 2018 in Open Court at Kisumu.
Mr. Akhonya, Branch Secretary of Union
J.Rika
Judge