[2018] KEELRC 2515 (KLR)
The court found that the applicant's dismissal was already a fait accompli by the time she moved the court, and that reinstatement is a final remedy under section 49 of the Employment Act, 2007, only to be granted in exceptional circumstances. The applicant did not demonstrate that her contract was underpinned by...
Source-derived case information.
- Citation
- [2018] KEELRC 2515 (KLR)
- Parties
- Applicant: Rosemary Aseka; Respondent: South African Airways (Proprietary) Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 2149 of 2017
- Procedural Posture
- Interlocutory Application / Ruling on Application for Stay of Dismissal and Reinstatement Pending Hearing of Main Suit
- Outcome
- application dismissed
- Judges
- MSA Makhandia
- Legal Topics
- Interlocutory Injunctions, Reinstatement, Unfair Termination, Employment Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Rosemary Aseka
Applicant
South African Airways (Proprietary) Ltd
Respondent
Procedural Posture
Interlocutory Application / Ruling on Application for Stay of Dismissal and Reinstatement Pending Hearing of Main Suit
Legal Issues
- 1 Whether the court should grant an interlocutory order staying the applicant's dismissal pending determination of the main suit.
- 2 Whether reinstatement or stay of dismissal is available as an interim remedy in ordinary employment claims.
- 3 Whether the applicant's contract had statutory or contractual underpinning justifying court intervention at the interlocutory stage.
Ratio Decidendi
The court found that the applicant's dismissal was already a fait accompli by the time she moved the court, and that reinstatement is a final remedy under section 49 of the Employment Act, 2007, only to be granted in exceptional circumstances. The applicant did not demonstrate that her contract was underpinned by statutory or special contractual provisions that would justify court intervention at the interlocutory stage. Therefore, granting an order to stay the dismissal or reinstate the applicant pending the hearing of the main suit would not be legally prudent or feasible. The application was dismissed accordingly.
Court Disposition
application dismissed
Orders
- The application dated 24 October 2017 is dismissed.
- Costs in the cause.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 2149 OF 2017
ROSEMARY ASEKA.....................................................................CLAIMANT
v
SOUTH AFRICAN AIRWAYS (PROPRIETARY)LTD...........RESPONDENT
RULING
1. Rosemary Aseka (applicant) instituted legal proceedings against South African Airways (Proprietary) Ltd (Respondent) under certificate of urgency on 30 October 2017 seeking
1. …
2. THAT Pending the hearing and determination of this Application inter-parties, this Honourable court be pleased to make an order staying the dismissal of the applicant/Claimant as contained in the letter dated 19th October, 2017 and instead, direct that the applicant resume her official duties and earns her full salary without loss of any benefits.
3. THAT Pending the hearing and determination of the main suit/Claim inter-parties, this Honourable court be pleased to make an order staying the dismissal of the applicant/Claimant as contained in the letter dated 19th October, 2017 and instead, direct that the applicant resume her official duties and earns her full salary without loss of any benefits.
4. THAT upon hearing the main suit inter-parties, this Honourable court be pleased to make an order setting aside the dismissal of the applicant/Claimant as contained in the letter dated 19th October, 2017.
5. THAT the costs of this application be borne by the respondent.
2. On 13 November 2017, Nzioki wa Makau J ordered that the applicant’s position of Finance Supervisor should not be filed pending inter partes hearing of the application on 5 December 2017.
3. The Respondent filed grounds of opposition and replying affidavit on 1 December 2017, and the applicant made oral submissions during that appearance.
4. The submissions from the Respondent and reply from the applicant was scheduled to 15 December 2017, but due to an accident involving the applicant’s advocate, the hearing was rescheduled to 16 January 2018.
5. The Court has given due consideration to the material placed before it and the oral submissions by the advocates on the record.
6. In the view of the Court it is not necessary to outline in this ruling the facts and arguments presented by the parties because of the now acceptable legal position on reinstatement or stay of dismissal in ordinary employment claims.
7. It is not in dispute that the applicant’s contract was terminated through a letter dated 16 October 2017 but backdated to 13 October 2017.
8. In light of the fact that the dismissal was already a fait accompliby the time the applicant moved Court on 30 October 2017, and that in terms of section 49 of the Employment Act, 2007, reinstatement is a final remedy, and further considering that reinstatement should only be ordered in very exceptional circumstances, it is the view of the Court that granting an order staying the dismissal of the applicant would not be legally prudent or feasible at this interlocutory stage.
9. The Court is also alive to the fact that the applicant has not suggested that her contract was underpinned by any specific statutory or contractual provisions to warrant its interference at this stage.
10. The application dated 24 October 2017 is therefore dismissed.
11. Costs in the Cause.
Delivered, dated and signed in Nairobi on this 26th day of January 2018.
Radido Stephen
Judge
Appearances
For applicant Mr. Jaoko instructed by Nchoe, Jaoko & Co. Advocates
For Respondent Mr. Amolo instructed by Amolo & Kibanya Advocates
Court Assistant Lindsey