[2024] KEELRC 138 (KLR)
The court found that the application for interim reinstatement was not urgent, as it was filed over a month after the alleged unfair dismissal and the certificate of urgency bore the same date as the application. The court emphasized that reinstatement is a substantive remedy to be determined after hearing both...
Source-derived case information.
- Citation
- [2024] KEELRC 138 (KLR)
- Parties
- Applicant: Felix Mushukhani Khagali; Respondent: Music Copyright Society of Kenya
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause E1071 of 2023
- Procedural Posture
- Miscellaneous Application / Ruling on Interim Application for Urgency and Reinstatement
- Outcome
- application dismissed
- Judges
- J Rika
- Legal Topics
- Interim Reinstatement, Urgency of Application, Unfair Dismissal, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Felix Mushukhani Khagali
Applicant
Music Copyright Society of Kenya
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interim Application for Urgency and Reinstatement
Legal Issues
- 1 Whether the application for interim reinstatement is urgent and merits ex parte consideration.
- 2 Whether the court can grant interim reinstatement pending hearing of the main claim.
- 3 Whether the claimant demonstrated special circumstances justifying interim reinstatement.
Ratio Decidendi
The court found that the application for interim reinstatement was not urgent, as it was filed over a month after the alleged unfair dismissal and the certificate of urgency bore the same date as the application. The court emphasized that reinstatement is a substantive remedy to be determined after hearing both parties and not as an interim or ex parte measure. Rule 17(10) of the Employment and Labour Relations Court (Procedure) Rules, 2016, expressly prohibits granting ex parte reinstatement orders unless special circumstances are demonstrated. The claimant failed to show any such special circumstances in his affidavit. Consequently, the application lacked merit and was dismissed, with...
Court Disposition
application dismissed
Orders
- The application filed by the claimant dated 20th December 2023 is not urgent and has no merit.
- The application is dismissed with no order on costs.
Full Case Text
Judgment text and source record
20 paragraphs
Khagali v Music Copyright Society of Kenya (Cause E1071 of 2023) [2024] KEELRC 138 (KLR) (7 February 2024) (Ruling)
Neutral citation: [2024] KEELRC 138 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause E1071 of 2023
J Rika, J
February 7, 2024
Between
Felix Mushukhani Khagali
Claimant
and
Music Copyright Society of Kenya
Respondent
Ruling
1. The Claimant seeks, through his Application dated 20th December 2023, orders that: -a.The Application is certified urgent, service be dispensed with, and is heard ex-parte in the first instance due to its urgency.b.The Claimant is re-instated in the interim.c.Temporary injunction restraining the Respondent from inter alia, terminating the Claimant’s contract.d.OCS at the nearest Police Station to assist in the implementation of the orders.e.Any other suitable order.
2. The Application is founded on the Affidavit of the Claimant, sworn on 20th December 2023. It is supported also by the Certificate of Urgency signed by the Learned Counsel for the Claimant, Kiptunge Collins, dated 20th December 2023.
3. It was placed before the undersigned Judge, on 7th February 2024.
The Court Finds: -1. The Application is not urgent. It is dated 20th December 2023. The Certificate of Urgency bears the same date. The Application had been placed before the Court over a month later, on 7th February 2024. It is not urgent.2. The Claimant states that he was unfairly dismissed on 30th October 2023. He seeks reinstatement in the interim.3. Reinstatement is ordinarily, a substantive remedy, to be considered on hearing evidence from both Parties. It is not intended to be a provisional measure.4. Rule 17 [10] of the E&LRC [Procedure] Rules, 2016, states that notwithstanding anything contained in Rule 17, the Court shall not grant an ex parte order that reinstates into employment, an Employee whose services have been terminated.5. The Claimant has not shown through his Affidavit, special circumstances, that would justify consideration of interim reinstatement. He should concentrate on prosecuting his Claim, and in pursuing reinstatement as a substantive remedy.
It is ordered: -a.The Application filed by the Claimant dated 20th December 2023 is not urgent, and has no merit.b.It is dismissed with no order on the costs.c.The Claimant to prosecute his main Claim.
DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY, AT NAIROBI, UNDER PRACTICE DIRECTION 6[2] OF THE ELECTRONIC CASE MANAGEMENT PRACTICE DIRECTIONS 2020, THIS 7TH DAY OF FEBRUARY 2024. JAMES RIKAJUDGE