[2018] KEELRC 154 (KLR)
The court found that the applicant was seeking a final order of reinstatement at an interlocutory stage, which is not permissible unless the legal requirements for a mandatory injunction are strictly satisfied. The applicant failed to demonstrate that the circumstances justified such an order, as he had not shown...
Source-derived case information.
- Citation
- [2018] KEELRC 154 (KLR)
- Parties
- Applicant: Francis Wesiela Chemasweti; Respondent: The County Executive Committee Member Health Services, Kakamega County; Respondent: County Public Service Board Kakamega County; Respondent: County Government of Kakamega
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 48 of 2018
- Procedural Posture
- Constitutional Petition / Interlocutory Application for Reinstatement Pending Hearing
- Outcome
- application dismissed
- Judges
- MN Nduma
- Legal Topics
- Unfair Dismissal, Mandatory Injunctions, Interlocutory Relief, Administrative Action
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Wesiela Chemasweti
Applicant
The County Executive Committee Member Health Services, Kakamega County
Respondent
County Public Service Board Kakamega County
Respondent
County Government of Kakamega
Respondent
Procedural Posture
Constitutional Petition / Interlocutory Application for Reinstatement Pending Hearing
Legal Issues
- 1 Whether the applicant is entitled to an order of reinstatement at the interlocutory stage.
- 2 Whether the legal requirements for grant of a mandatory injunction have been satisfied.
- 3 Whether the applicant's rights were violated by the deployment.
Ratio Decidendi
The court found that the applicant was seeking a final order of reinstatement at an interlocutory stage, which is not permissible unless the legal requirements for a mandatory injunction are strictly satisfied. The applicant failed to demonstrate that the circumstances justified such an order, as he had not shown violation of rights or loss of salary or benefits. The court applied the principles from Giella v Cassman Brown and held that the threshold for granting a mandatory injunction at this stage was not met. Consequently, the application for reinstatement was dismissed.
Court Disposition
application dismissed
Orders
- The application for reinstatement is dismissed with costs in the cause.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
CONSTITUTIONAL PETITION NO. 48 OF 2018
(Before Hon. Justice Mathews N. Nduma)
IN THE MATTER OF THE ALLEGED INFRINGEMENT AND VIOLATION OF RIGHTS
AND
IN THE MATTER OF THE CONSTITUTION OF KENYA: ARTICLES 10, 19, 20, 21, 22, 23, 27, 28, 41, 174, 183, 232, 235, 236, 258 and 259
AND
IN THE MATTER OF THE COUNTY GOVERNMENT ACT NO. 17 OF 2012
AND
IN THE MATTER OF THE EMPLOYMENT ACT NO. 11 OF 2007
AND
IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT NO. 4 OF 2015
BETWEEN
FRANCIS WESIELA CHEMASWETI.........PETITIONER/APPLICANT
VERSUS
THE COUNTY EXECUTIVE COMMITTEE MEMBER
HEALTH SERVICES, KAKAMEGA COUNTY........1ST RESPONDENT
COUNTY PUBLIC SERVICE BOARD
KAKAMEGA COUNTY...............................................2ND RESPONDENT
COUNTY GOVERNMENT OF KAKAMEGA.........3RD RESPONDENT
R U L I N G
1. Application dated 2nd July, 2008 and filed on 3rd July, 2018 seeks for orders that –
…An order be issued reinstating the Petitioner/Applicant to his position as the County Medical Laboratory Coordinator Kakamega County pending the hearing and determination of the Petition.
2. The application is opposed vide grounds of opposition in response to the application to wit that it offends the principles governing the grant of mandatory injunctions in that the right of the Petitioner/Applicant were not violated at all. He was simply deployed in the same job group as he held prior nor did he lose any salary or benefits by fact of the deployment. Furthermore the Applicant seeks final orders before the petition is heard and determined. The Application is also opposed vide a replying affidavit of Dr. Beatrice Etemesi the Chief Officer in charge of Medical Services as well as the accounting officer in the health docket.
Determination
3. Upon a careful consideration of the application, the court is satisfied, the applicant seeks grant of final orders of reinstating the Petitioner/Applicant to his former position as the County Medical Laboratory Co-ordinator Kakamega County at the interlocutory stage.
4. This order cannot be granted at this stage of the case. The application does not satisfy the Legal requirements that must be satisfied before an interim injunction is granted as set out in the case of Giella v Cassman Brown.
5. Furthermore, grant of a mandatory injunction requires a more rigorous test to be applied since it seeks to undo that which has already happened.
6. In the final analysis the application is dismissed with costs in the cause.
Dated, Delivered and Signed in Kisumu this 20th day of December, 2018
Mathews N. Nduma
Judge
Appearances
Mrs. Malasi for Petitioner/Applicant
Mr. Shitsama for Respondent
Chrispo – Court Clerk