https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1525

Mukhwana v Nabwire (Cause E395 of 2026) [2026] KEELRC 1525 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1525 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E395 of 2026 BOM Manani, J June 4, 2026 Between Rhodah Namachanja Mukhwana Claimant and Consolata Wakwabubi Nabwire Respondent Ruling Background 1.The Claimant instituted this suit to challenge the Respondent’s decision to terminate her employment contract. She contends that the decision was made without valid reason and in disregard of due process. 2.Together with the Memorandum of Claim, the Claimant filed the application dated 16th April 2026 under certificate of urgency seeking the following interim reliefs:-a.Spent.b.Spent.c.Spent.d.That pending the hearing and determination of the main suit, the court issues an order of interim injunction to suspend the Respondent’s decision to terminate her employment.e.That pending the hearing and determination of the main suit, the court be pleased to issue an order of interim injunction to retrain the Respondent from advertising a vacancy, recruiting and or filling the position of Personal Assistant within her office. 3.The application is supported by the grounds on the face thereof and the Claimant’s affidavits. She avers that the Respondent hired her services as a Personal Assistant with effect from 20th August 2025. She further avers that the contract between the parties was for a fixed term of twenty five (25) months. 4.The Claimant avers that upon her recruitment to the aforesaid position, she diligently executed her duties to the Respondent’s satisfaction. She avers that despite this, the Respondent issued her with an undated letter terminating the employment relationship between them with effect from 1st May 2026. 5.The Claimant contends that the Respondent alleged that the reason for the decision was that she was restructuring her office. However, she (the Claimant) asserts that she was not given evidence to support this contention. As such, she contends that the decision was unlawful. 6.The Claimant avers that the decision to terminate her services was pre-meditated and violated her rights to fair administrative action and fair hearing. She expresses fear that the Respondent may proceed to fill her position during the pendency of the suit. And hence the prayer for the interim reliefs. 7.The Respondent has opposed the application. She filed a replying affidavit dated 28th April 2026 to anchor her response to the motion. 8.The Respondent contends that the contract between the parties was legitimately brought to a close on account of restructuring of her (the Respondent’s) office. She contends that she has a right to restructure her office and determine her workforce. It is her case that if the court intervenes in the matter, it will be encroaching on her managerial prerogative at the workplace. 9.The Respondent contends that since the Claimant’s services were terminated for valid reason and with notice as required under the contract between them, the separation of the parties was lawful with the result that the Claimant does not have a prima facie case with a probability of success. As such, she avers that the Claimant has not satisfied the first condition for grant of an order of interim injunction. 10.The Respondent further avers that the relationship between the parties was contractual in nature and that any injury that the Claimant may suffer as a result of its closure is capable of redress through an award of damages. As such, she (the Respondent) asserts that the Claimant has not satisfied the second condition for grant of an interim order of injunction. 11.The Respondent asserts that contrary to the Claimant’s fears, she (the Respondent) does not intend to fill the Claimant’s position. As such, she contends that there is no valid reason to grant the orders sought in the application. 12.In reply, the Claimant filed a further affidavit. She concedes that the Respondent served her with notice to terminate her services on 13th April 2026. However, she asserts that the notice was irregular since it was for a period of less than 30 days contrary to the contract between the parties. 13.The Claimant contends that although the notice was expressed to take effect on 1st May 2026, the Respondent informed the court that she had already undertaken the restructuring. As such, she (the Claimant) asserts that the Respondent’s action have not only contravened the law but her (the Respondent’s) own letter. 14.The Claimant asserts that the Respondent’s conduct exhibits a clear intention on her part to terminate the employment relationship between them prematurely and unlawfully. Hence her position that the court should intervene by issuing the interim reliefs which she seeks. Analysis 15.The court directed that the application be argued through written submissions. The parties were asked to file and avail copies of their submissions by 8th May 2026. However, by the close of business on the aforesaid date, only the Claimant had availed her submissions. Nevertheless, the court will consider the application based on the affidavit evidence by the parties and the submissions by the Claimant. 16.The law on grant of interim injunctive relief is fairly settled. An applicant for this relief must satisfy the conditions which were established in the celebrated case of Giella v Cassman Brown Co. Ltd [1973] EA 358. These are:-a.Demonstrating that he has a prima facie case with a probability of success.b.Demonstrating that the injury he will suffer if the orders he seeks are not granted is incapable of reparation by an award of damages.c.If the court is in doubt regarding whether the above conditions have been satisfied, it should decide the application on a balance of convenience. 17.As the Claimant has rightly pointed out in her submissions, these conditions have been restated in a series of judicial pronouncements including Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR). In that case, the Court of Appeal stated that an applicant for interim injunction will be deemed to have established a prima facie case if he presents preliminary material which demonstrates that his right has been infringed by the respondent thus obliging the court to interrogate the matter further. 18.The court expressed itself on the matter as follows:-So what is a prima facie case? I would say that in civil cases it is a case in which on the material presented to the Court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.’’ 19.According to the Claimant, the Respondent terminated her services on account of alleged restructuring. However, she (the Claimant) contends that the Respondent did not adhere to the law on closure of a contract of service on account of the operational requirements of the employer. 20.In response, the Respondent asserts that she adhered to the law in closing the contract between them. However, she has not presented to court preliminary material to support her contention. 21.The law on termination of a contract of service on account of redundancy is set out under section 40 of the Employment Act. An employer who proposes to terminate an employee’s services on account of redundancy must provide evidence to support the alleged redundancy. It is not enough to simply state that the contract was closed due to redundancy. 22.The law further obligates the employer to issue the affected employee with a notice of intended redundancy which should be for a minimum period of one month. The notice should speak to the reasons for and extent of the proposed redundancy. A similar notice is to be issued to the local labour office. 23.The employer must also provide evidence to speak to the selection criteria which was used to isolate the employees who have been released on account of redundancy. He must also demonstrate that he paid the employee(s) redundancy and other exit dues as required in law. 24.The Respondent has not presented preliminary material to demonstrate compliance with the foresaid requirements. In the absence of such preliminary evidence, the court arrives at the conclusion that the Claimant has demonstrated that her employment rights may have been infringed by the Respondent. Consequently, the court finds that the Claimant has established a prima facie case with a probability of success. 25.However, the presence of a prima facie case is not sufficient to warrant the grant of an order of interim injunction. In addition, the applicant must demonstrate that failure to issue the order will occasion him irreparable harm. 26.In the instant case, the Claimant avers that the contractual term between the parties was twenty five (25) months. She contends that at the time the Respondent issued her with the letter of termination, she had served a portion of the term leaving a balance of eighteen (18) months. 27.The Claimant further avers that her gross monthly salary was Ksh. 100,000.00. As such, the injury she will suffer if the court does not issue the interim injunction to restrain the Respondent from giving effect to the letter of termination is capable of quantification. As a matter of fact, she (the Claimant) has quantified the possible loss at Ksh. 1,800,000.00 if the prayers in the Memorandum of Claim are anything to go by. This loss is capable of reparation by an award of damages. 28.Having regard to the foregoing, the court finds that the Claimant has not demonstrated that she will suffer irreparable harm should the orders sought not issue. This disentitles her to the injunctive orders she seeks. Determination 29.The upshot is that the court declines to grant the orders sought in the application under consideration. 30.Costs of the application shall abide the outcome of the suit. DATED, SIGNED AND DELIVERED ON THE 4TH DAY OF JUNE, 2026B. O. M. MANANIJUDGEIn the presence of:…………….for the Claimant…………….for the RespondentOrderIn light of the directions issued on 12th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.B. O. M. MANANI