[2014] KEELRC 676 (KLR)
The court held that reinstatement is a substantive remedy under Section 49 of the Employment Act 2007 and is not to be granted as an interim or provisional measure. The respondent acted within its managerial prerogative in dismissing the claimant, and the court should not interfere with that prerogative at the...
Source-derived case information.
- Citation
- [2014] KEELRC 676 (KLR)
- Parties
- Claimant: Nilan Nyota Mirembo; Respondent: Nairobi City County
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 592 of 2013
- Procedural Posture
- Employment Cause / Interlocutory Application Ruling
- Outcome
- application dismissed
- Legal Topics
- Interim Reinstatement, Summary Dismissal, Injunctive Relief, Managerial Prerogative
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nilan Nyota Mirembo
Claimant
Nairobi City County
Respondent
Procedural Posture
Employment Cause / Interlocutory Application Ruling
Legal Issues
- 1 Whether interim reinstatement can be granted as a provisional measure pending hearing of the main dispute.
- 2 Whether the respondent's managerial prerogative in dismissing the claimant should be interfered with by the court.
- 3 Whether injunctive relief is warranted in the circumstances.
Ratio Decidendi
The court held that reinstatement is a substantive remedy under Section 49 of the Employment Act 2007 and is not to be granted as an interim or provisional measure. The respondent acted within its managerial prerogative in dismissing the claimant, and the court should not interfere with that prerogative at the interlocutory stage. The remedies sought by the claimant, including reinstatement and injunctive relief, are only available after a full hearing and determination of the main dispute. The application for interim reinstatement and injunction was therefore rejected as premature and unwarranted.
Court Disposition
application dismissed
Orders
- The application dated 26th April 2013 is rejected.
- The claimant shall schedule the main dispute for hearing.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT AT NAIROBI
CAUSE NUMBER 592 OF 2013
BETWEEN
NILAN NYOTA MIREMBO …………………………………………………………. CLAIMANT
VERSUS
NAIROBI CITY COUNTY…………………………………………………………….RESPONDENT
RULING
1. The Claimant filed an application dated 26th April 2013. She was the Acting Director of Education of the Respondent, until 22nd April 2013, when the Respondent summarily dismissed her. She approached the Court under certificate of urgency, seeking orders for interim reinstatement, and injunction barring the Respondent from interfering with her job, pending the outcome of the dispute.
2. The Parties’ Advocates agreed to have the application disposed of by way of the Parties’ Affidavits and Submissions on record. Upon careful consideration of those Affidavits and Submissions, as well as various decisions made in the past by this Court on interim reinstatement, the Court Finds:-
Reinstatement is ordinarily a substantive remedy. It is not intended to be granted as a provisional measure. It is a remedy under Section 49 of the Employment Act 2007, granted upon finding termination to be unfair;
The Respondent has acted within its managerial prerogative in suspending and dismissing of the Claimant. The Court must not unduly interfere with that prerogative.
The remedies of reinstatement, re-engagement without loss of salaries, benefits, privileges and seniority as well as the remedy of monetary compensation are available to the Claimant after the full hearing. The balance of convenience inclines in favour of the employer in the circumstances.
The decision of Hon. Justice Ongaya in Industrial Court Cause Number 562 of 2012 between Shankar Saklani v. DHL Global Forwarding does not deal with interim reinstatement. The Court gave remedies to the Claimant in that decision after full consideration of the evidence.
The prayer for reinstatement is premature, and the prayer for injunctive reliefs unwarranted. IT IS ORDERED-
The Application dated 26th April 2013 is rejected.
The Claimant shall schedule the main dispute for hearing.
Costs in the Cause.
Dated and delivered at Nairobi this 21st day of January 2014.
James Rika
Judge