[2018] KEELRC 294 (KLR)
The court found that the applicant had not made a prima facie case with a probability of success as required for the grant of an interim injunction. The disciplinary process appeared valid on the face of the documents presented, and the court emphasized its reluctance to interfere with the employer's disciplinary...
Source-derived case information.
- Citation
- [2018] KEELRC 294 (KLR)
- Parties
- Applicant: Donald Nyairo Ongori; Respondent: Kisii County Assembly Service Board; Respondent: The Clerk/Secretary Kisii County Assembly Service Board; Respondent: The Director, Human Resources Management Kisii County Assembly
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition 8 of 2018
- Procedural Posture
- Petition / Ruling on Application for Interim Injunction
- Outcome
- application dismissed
- Judges
- MN Nduma
- Legal Topics
- Disciplinary Procedure, Interdiction, Interim Injunctions, Employee Absenteeism
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Donald Nyairo Ongori
Applicant
Kisii County Assembly Service Board
Respondent
The Clerk/Secretary Kisii County Assembly Service Board
Respondent
The Director, Human Resources Management Kisii County Assembly
Respondent
Procedural Posture
Petition / Ruling on Application for Interim Injunction
Legal Issues
- 1 Whether the applicant has established a prima facie case for grant of interim injunction against the disciplinary process.
- 2 Whether the court should interfere with the employer's mandate to discipline its staff.
Ratio Decidendi
The court found that the applicant had not made a prima facie case with a probability of success as required for the grant of an interim injunction. The disciplinary process appeared valid on the face of the documents presented, and the court emphasized its reluctance to interfere with the employer's disciplinary mandate unless clear grounds are established. As such, the application for interim injunctive relief was dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The application for interim injunction is dismissed.
- Costs in the cause.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT KISUMU
PETITION NO. 8 OF 2018
(Before Hon. Justice Mathews N. Nduma)
DONALD NYAIRO ONGORI.....................................................PETITIONER
VERSUS
KISII COUNTY ASSEMBLY SERVICE BOARD..........1ST RESPONDENT
THE CLERK/SECRETARY KISII COUNTY
ASSEMBLY SERVICE BOARD...................................2ND RESPONDENT
THE DIRECTOR, HUMAN RESOURCES MANAGEMENT
KISII COUNTY ASSEMBLY........................................3RD RESPONDENT
R U L I N G
1. The Applicant, a Senior Research Officer, II of Kisii County Assembly from 24th July, 2014 was interdicted from service by Director Human Resource Management by a letter dated 11th December, 2017 for chronic absenteeism from work on various dates stated in the letter in the month of September, October and November, 2017.
2. The Applicant was given 21 days to respond to the charges. He was placed on half pay and full house and medical allowances pending the hearing and determination of the disciplinary case.
3. The Applicant responded to the allegations on 29th December, 2017 giving various explanations for his absence.
4. The hearing of the case was fixed for 27th February, 2018. This suit was filed on 28th February, 2018. No interim orders were granted.
5. The Respondent has not filed a replying affidavit to the application. The application stands opposed. However, the applicant has not made a prima facie case with a probability of success. That onus remains with the Applicant regardless of whether the application is opposed or not.
6. On the face of the papers presented by the Applicant, there appears to be a valid disciplinary case pending against the Applicant. The court is slow to interfere with the mandate of the employer to discipline its staff for good cause.
7. The Applicant has therefore not satisfied the requirements set out in the case of Giella vs Cassman Brown for grant of interim injunction,
8. The application lacks merit and is dismissed. Costs in the cause.
Ruling Dated, Signed and Delivered in Kisumu this 6th day of December, 2018
Mathews N. Nduma
Judge
Appearances
Hammerton Maloba & Co. for the Petitioner/Applicant
Chrispo – Court Clerk