[2018] KEELRC 599 (KLR)
The court found that the claimant had not met the threshold for the grant of injunctive relief as set out in Giella v Cassman Brown. The application was not opposed, but the court was not satisfied that the requirements for conservatory orders or mandatory orders for reinstatement and payment of withheld salary had...
Source-derived case information.
- Citation
- [2018] KEELRC 599 (KLR)
- Parties
- Claimant: Francis Kiongo Ngatia; Respondent: The County Secretary Tharaka Nithi County Government; Respondent: County Public Service Board
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Cause 44 of 2018
- Procedural Posture
- Employment Application / Ruling on Interlocutory Application
- Outcome
- application dismissed
- Judges
- AN Makau
- Legal Topics
- Injunctive Relief, Disciplinary Proceedings, Reinstatement, Withheld Salary
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Kiongo Ngatia
Claimant
The County Secretary Tharaka Nithi County Government
Respondent
County Public Service Board
Respondent
Procedural Posture
Employment Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the claimant is entitled to conservatory orders restraining the respondents from disciplinary action on matters already determined by the criminal court.
- 2 Whether the claimant should be reinstated to the payroll pending hearing and determination of the claim.
- 3 Whether the respondents should be compelled to pay withheld half salary to the claimant pending determination of the suit.
Ratio Decidendi
The court found that the claimant had not met the threshold for the grant of injunctive relief as set out in Giella v Cassman Brown. The application was not opposed, but the court was not satisfied that the requirements for conservatory orders or mandatory orders for reinstatement and payment of withheld salary had been established. Consequently, the application was dismissed, and the matter was directed to proceed to hearing.
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 18th May 2018 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS
COURT OF KENYA AT MERU
SUIT NO. 44 OF 2018
FRANCIS KIONGO NGATIA.................................CLAIMANT
VERSUS
THE COUNTY SECRETARY THARAKA
NITHI COUNTY GOVERNMENT............1ST RESPONDENT
COUNTY PUBLIC SERVICE BOARD.....2ND RESPONDENT
RULING
1. The Claimant/Applicant seeks through the Notice of Motion Application dated 18th May 2018 for the restraint and/or issue conservatory orders directed against the Respondents prohibiting them from harassing, threatening to dismiss, initiate any disciplinary proceedings against the Claimant on same counts which the criminal court determined on merits, dismissing and/or terminating and/or filing the position of the Claimant as Chief Accountant pending the hearing and determination of the application and/or cause. He also sought the reinstatement into the payroll on interdiction pending the hearing and determination of the claim. He prayed that the court be pleased to direct and/or compel the Respondents to compute and pay to the Claimant/Applicant all withheld half salary from the month of July 2015 to date pending the hearing and determination of the application and/or cause. The motion is supported by the Claimant/Applicant’s grounds on the face of the motion and the affidavit sworn on 18th May 2018.
2. The application was not opposed by the Respondents despite the Respondents having been offered an opportunity to file a reply as required in law. The Claimant/Applicant seeks orders in the nature of injunctive remedy. As the threshold in Giella vCassman Brown (1973) E.A. 358relating grant of injunctions has not been met, I would be reluctant to issue conservatory orders directed against the Respondents prohibiting them from harassing, threatening to dismiss, initiate any disciplinary proceedings against the Claimant on same counts which the criminal court determined on merits, dismissing and/or terminating and/or filing the position of the Claimant as Chief Accountant pending the hearing and determination of the application and/or cause or order the reinstatement into the payroll on interdiction pending the hearing and determination of the claim; direct and/or compel the Respondents to compute and pay to theClaimant/Applicant all withheld half salary from the month of July 2015 to date pending the hearing and determination of the application and/or cause. In the final analysis I will dismiss the motion but make no order as to costs as it was not opposed. The parties to proceed to take directions in the suit herein as the matter should be heard in the next term here at Meru.
It is so ordered.
Dated and delivered at Meru this 9th day of November 2018
Nzioki wa Makau
JUDGE