[2016] KEELRC 172 (KLR)
The court held that, although interim reinstatement is not encouraged and is generally reserved for determination after a full hearing, the respondent's failure to file any response or provide justification for the summary dismissal left the court with no factual or legal basis to decline the claimant's application...
Source-derived case information.
- Citation
- [2016] KEELRC 172 (KLR)
- Parties
- Claimant: Sylvester Juma Okumu; Respondent: National Transport and Safety Authority
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 830 of 2016
- Procedural Posture
- Employment Cause / Interlocutory Application Ruling
- Outcome
- interim reinstatement granted
- Judges
- J Rika
- Legal Topics
- Summary Dismissal, Interim Reinstatement, Urgent Application, Remedies for Unfair Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sylvester Juma Okumu
Claimant
National Transport and Safety Authority
Respondent
Procedural Posture
Employment Cause / Interlocutory Application Ruling
Legal Issues
- 1 Whether the claimant is entitled to interim reinstatement pending the hearing and determination of the claim.
- 2 Whether the respondent's failure to file a replying affidavit or grounds of opposition justifies granting interim relief.
Ratio Decidendi
The court held that, although interim reinstatement is not encouraged and is generally reserved for determination after a full hearing, the respondent's failure to file any response or provide justification for the summary dismissal left the court with no factual or legal basis to decline the claimant's application for interim reinstatement. The court emphasized that in the absence of opposition, and where the claimant's case is prima facie unchallenged, interim relief may be granted to preserve the claimant's position pending the final determination of the dispute.
Court Disposition
interim reinstatement granted
Orders
- Pending hearing and determination of the claim, the claimant is reinstated to the position of Assistant Motor Vehicle Inspector.
- Costs in the cause.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT
AT MOMBASA
CAUSE NO. 830 OF 2016
BETWEEN
SYLVESTER JUMA OKUMU……………………….......................CLAIMANT
VERSUS
NATIONAL TRANSPORT AND SAFETY AUTHORITY........RESPONDENT
RULING
1. The Claimant filed his Statement of Claim, on 24th October 2016. He states he was employed by the Respondent as an Assistant Motor Vehicle Inspector. He was summarily dismissed by the Respondent on 9th August 2016. He challenges summary dismissal, and seeks to be reinstated, or compensated.
2. He filed an Application under Certificate of Urgency on 24th October 2016. He prays for interim reinstatement, or for an order prohibiting the Respondent from recruiting and filling the position of Assistant Motor Vehicle Inspector.
3. The Application was served upon the Respondent. No Replying Affidavit, or Grounds of Opposition, was filed. The Claimant argued his Application ex-parte, on 18th November 2016.
The Court Finds:-
4. As stated in this Court’s Cause No. 556 of 2014 between Moses Sammy Ponda v. Imarika Sacco, reinstatement is a substantive remedy. It should be considered upon hearing the Parties in full.
5. Where reinstatement is sought at an interlocutory stage, and the Respondent does not file any Replying Affidavit and/or Grounds of Opposition, the Court would have no basis to decline interim reinstatement. In this Case, as in the Case of Sammy Ponda, the Respondent has filed nothing. The Respondent has not shown any prima facie justification, for its decision to summarily dismiss the Claimant. While the Court does not encourage interim reinstatement, the Court must have some factual and legal grounds, in declining a prayer for interim reinstatement.
IT IS ORDERED:-
a) Pending hearing and determination of the Claim, the Claimant is reinstated to the position of Assistant Motor Vehicle Inspector.
b) Costs in the Cause.
Dated and delivered at Mombasa this 13th day of December, 2016.
James Rika
Judge