[2021] KEELRC 1913 (KLR)
The court found that the respondent’s Human Resource Policy & Procedures Manual expressly provided for the suspension and interdiction of employees pending investigations, making the applicant’s suspension lawful. The suspension period had already lapsed, rendering any injunctive relief futile. Furthermore, the...
Source-derived case information.
- Citation
- [2021] KEELRC 1913 (KLR)
- Parties
- Applicant: Emily Esokomi; Respondent: Wevarsity Sacco Society Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Cause E001 of 2020
- Procedural Posture
- Interlocutory Application / Ruling on Motion for Temporary Injunction
- Outcome
- application dismissed with costs in the cause
- Legal Topics
- Suspension Pending Investigation, Disciplinary Procedure, Injunctive Relief, Employment Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emily Esokomi
Applicant
Wevarsity Sacco Society Limited
Respondent
Procedural Posture
Interlocutory Application / Ruling on Motion for Temporary Injunction
Legal Issues
- 1 Whether the suspension and surcharge imposed on the applicant were lawful under the employment contract and HR policy.
- 2 Whether the applicant is entitled to a temporary injunction restraining the respondent from suspending, surcharging, or interfering with her employment pending determination of the main suit.
- 3 Whether exceptional circumstances exist to justify the grant of injunctive relief.
Ratio Decidendi
The court found that the respondent’s Human Resource Policy & Procedures Manual expressly provided for the suspension and interdiction of employees pending investigations, making the applicant’s suspension lawful. The suspension period had already lapsed, rendering any injunctive relief futile. Furthermore, the applicant failed to demonstrate any exceptional circumstances that would justify the grant of a temporary injunction to restrain the respondent from exercising its disciplinary powers. Consequently, the application lacked merit and was dismissed with costs in the cause.
Court Disposition
application dismissed with costs in the cause
Orders
- The Motion dated 23 November 2020 is dismissed with costs in the cause.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT BUNGOMA
CAUSE NO. E001 OF 2020
EMILY ESOKOMI .......................................................CLAIMANT
VERSUS
WEVARSITY SACCO SOCIETY LIMITED.......RESPONDENT
RULING
1. Emily Esokomi (the applicant) was appointed as Deputy Chief Executive Officer by Wevarsity Sacco Society Ltd (the Respondent) in 2019.
2. On 24 July 2020, the Respondent issued a show-cause to the applicant, and she responded on 4 August 2020.
3. The Respondent followed up on the show-cause with a letter dated 12 October 2020 notifying the applicant that she had been surcharged for some 2 fraudulent transactions. The surcharge was to be paid within 2 months.
4. The letter also notified the applicant that she had been suspended for 3-months to facilitate further investigations.
5. The applicant moved the Court on 24 November 2020, alleging that the suspension and surcharge were unlawful.
6. At the same time, the applicant filed a Motion under a certificate of urgency seeking orders:
1. …
2. …
3. THAT a temporary order of injunction be issued restraining the Respondent and its lawful agents, representatives and assigns from suspending, surcharging and in any way interfering with the Claimant’s/applicant’s employment pending the hearing and determination of the main suit.
7. The Court directed that the Motion be served.
8. On 14 December 2020, the Court directed the parties to file and exchange further affidavits and submissions.
9. The Respondent filed a replying affidavit and grounds of opposition on 22 December 2020. It filed its submissions on 26 January 2021.
10. The applicant’s submissions were not on record by the agreed timeline.
11. The Court has looked at the material placed before it and concluded that the application has no merit for three reasons.
12. One, the Respondent’s Human Resource Policy & Procedures Manual at section 6 11. 2 envisages suspension and interdiction of employees pending investigations.
13. The suspension of the applicant was, therefore, lawful as it was provided for in the contract in place.
14. Two, the suspension of the applicant was to last for 3-months, which is now long past. The Court would be acting in futility in stopping what has lapsed.
15. Three, the applicant has not demonstrated any exceptional circumstances to warrant the order sought in the Motion, which would needlessly restrict the Respondent from exercising disciplinary control over the applicant, its employee.
16. The Motion dated 23 November 2020 is dismissed with costs in the cause.
Delivered through Microsoft teams, dated and signed in Nairobi on this 31st day of March 2021.
Radido Stephen, MCIArb
Judge
Appearances
For applicant J.B. Otsiula & Associates Advocates
For Respondent Abok Odhiambo & Co. Advocates
Court Assistant Chrispo Aura