[2018] KEELRC 497 (KLR)
The court found that the claimant had not established any ongoing illegality or breach of contract in the disciplinary process initiated by the respondents. The claimant had a right of appeal to the 2nd respondent, which constituted a sufficient internal mechanism for resolving his grievances. Additionally, the...
Source-derived case information.
- Citation
- [2018] KEELRC 497 (KLR)
- Parties
- Applicant: James Maina Thiongo; Respondent: Prof. Francis Kimani Gatheri; Respondent: The University Council, Technical University of Kenya
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 762 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed
- Judges
- B Ongaya
- Legal Topics
- Disciplinary Procedure, Injunctive Relief, Employment Contracts, Collective Bargaining Agreement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Maina Thiongo
Applicant
Prof. Francis Kimani Gatheri
Respondent
The University Council, Technical University of Kenya
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the court should grant an interlocutory injunction restraining the respondents from taking disciplinary action against the claimant pending determination of the claim.
- 2 Whether the respondents' actions breached the claimant's rights under the Constitution, Employment Act, or the CBA.
- 3 Whether the application had been overtaken by events due to payment of the withheld salary and the disciplinary meeting having already occurred.
Ratio Decidendi
The court found that the claimant had not established any ongoing illegality or breach of contract in the disciplinary process initiated by the respondents. The claimant had a right of appeal to the 2nd respondent, which constituted a sufficient internal mechanism for resolving his grievances. Additionally, the unpaid salaries had already been paid, and the disciplinary meeting in question had already taken place, rendering the application for injunctive relief moot and overtaken by events. The court reiterated that judicial intervention in employer disciplinary processes is only warranted in exceptional circumstances, which were not demonstrated in this case.
Court Disposition
application dismissed
Orders
- The claimant's application filed on 08.05.2016 is dismissed with costs in the cause.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA
AT NAIROBI
CAUSE NO.762 OF 2016
JAMES MAINA THIONGO.................................................................................CLAIMANT
- VERSUS -
PROF. FRANCIS KIMANI GATHERI.........................................................1ST RESPONDENT
THE UNIVERSITY COUNCIL,
TECHNICAL UNIVERSITY OF KENYA....................................................2ND RESPONDENT
(Before Hon. Justice Byram Ongaya on Friday 30th November, 2018)
RULING
The claimant filed an application on 08. 05. 2016 through J.I. Mwangi & Company Advocates. The application was under order 40 rule 1&2, order 51 rule 1 &3, Article 162 of the Constitution of Kenya 2010 and all enabling provisions of law.
The substantive prayer is for the order that pending the hearing and determination of the application the respondents by themselves, their servants , agents, or otherwise be restrained by way of an injunction from convening, discussing or taking any action against the claimant on 05. 05. 2016 or implementing any decision made thereof pending the hearing and determination of the claim. The application was supported with the annexed claimant’s affidavit and the grounds stated in the application. The claimant’s case is that without reason the 1st respondent has caused stoppage of payment of the claimant’s salary for November and December 2015. The claimant states that the reason for the stoppage is so as to intimidate, harass, and cow the claimant and the 2nd respondent has convened the meeting of 05. 05. 2013 in breach of the CBA. The respondent’s actions therefore breached the claimant’s rights under the Constitution, the Employment Act, and the 2012/2013 CBA.
The respondent has opposed the application by filing on 22. 06. 2016 the replying affidavit of Ruth Kirwa through Tongoi & Company Advocates. The respondent’s case is that the claimant attended the disciplinary hearing of 05. 05. 2016 and rushed to Court instead of waiting for the outcome. Further the claimant is entitled to appeal to the respondent’s Council if he is dissatisfied by the decision of the disciplinary Committee. It was submitted for the respondent that the unpaid salary in the claimant’s grounds supporting the application had been paid. The application had therefore been overtaken with events.
For the Court’s intervention in the respondents’ exercise of employers’ human resource function to exercise disciplinary control over the claimant the Court follows its opinion the ruling in Geoffrey Mworia-Versus- Water Resources Management Authority and 2 others [2015]eKLR thus, “The principles are clear.
The court will very sparingly interfere in the employer’s entitlement to perform any of the human resource functions such as recruitment, appointment, promotion, transfer, disciplinary control, redundancy, or any other human resource function. To interfere, the applicant must show that the employer is proceeding in a manner that is in contravention of the provision of the Constitution or legislation; or in breach of the agreement between the parties; or in a manner that is manifestly unfair in the circumstances of the case; or the internal dispute procedure must have been exhausted or the employer is proceeding in a manner that makes it impossible to deal with the breach through the employer’s internal process.”
In the instant case it is not in dispute that the claimant has a right of appeal to the 2nd respondent. The Court finds such to be sufficient mechanism to resolve the grievances the claimant may hold about the disciplinary process as initiated against him. There is also no dispute that the unpaid salaries as per the claimant’s grounds in support of the application have since been paid. The claimant has not established that the disciplinary process is otherwise proceeding unlawfully or in breach of the applicable terms and conditions of the contract of service. It is also true that the prayer as made has been overtaken in so far as the meeting of 05. 05. 2013 and subject of the temporary injunction had already taken place.
In conclusion the claimant’s application filed on 08. 05. 2016 is hereby dismissed with costs in the cause.
Signed, datedand deliveredin courtat Nairobithis Friday 30th November, 2018.
BYRAM ONGAYA
JUDGE