[2019] KEELRC 349 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU

E&LRC CAUSE NO. 36 OF 2019

(Before Hon. Justice Mathews N. Nduma)

LILIAN PURITY NYAJOWI...............................................................................1ST CLAIMANT

JANET ALUOCH OYUGI...................................................................................2ND CLAIMANT

CAROLINE ADHIAMBO MBAI........................................................................3RD CLAIMANT

WYCLIFFE AMBA ODERO...............................................................................4TH CLAIMANT

OCHIENG BOB EVANS......................................................................................5TH CLAIMANT

ROSELYDAH AUMA ONYWERA....................................................................6TH CLAIMANT

VERSUS

THE COUNTY SECRETARY/CHIEF EXECUTIVE

OFFICER, HOMA BAY COUNTY GOVERNMENT..................................1ST RESPONDENT

THE OFFICE OF THE GOVERNOR, HOMA BAY

COUNTY GOVERNMENT............................................................................2ND RESPONDENT

THE SECRETARY, HOMA BAY

COUNTY PUBLIC SERVICE BOARD.......................................................3RD RESPONDENT

RULING

1. The six (6) Claimants/Applicants pray for the following interim reliefs pending the hearing and determination of the claim:

(a) That the application be certified as urgent.

(b) That the application be heard Ex-parte in the first instance and service be dispensed with.

(c) Pending the hearing and determination of this application or suit the 1st, 2nd, 3rd, 4th, 5th and 6th claimants be allowed to access and/or continue with their respective duties unrestrained as county directors and assistant civil engineer respectively.

(d) Pending the hearing and determination of this application or suit the 1st, 2nd, 3rd, 4th, 5th and 6th claimants be paid their salary arrears or allowances respectively and/or should continue to be paid their salaries in terms of letters of appointment dated 14th December 2018.

(e) The respondent to pay 1st , 2nd, 3rd, 4th and 5th claimants’ three months salary with effect from 2nd January 2019, Gross salary arrears Kshs. 507,870/=

(f) The respondent to pay the 6th claimant’s three months with effect from 2nd January 2019, Gross salary arrears Kshs. 168,000/=

(g) The respondent to pay 1st, 2nd, 3rd, 4th and 5th claimant’s gross salary Kshs. 169,290/= per month, Basic salary Kshs. 118,290/= per month, House allowance Kshs. 25,000/= per month, commuter allowance Kshs. 16,000/= per month, leave allowance Kshs. 10,000/= per month.

(h) The respondent to pay the 6th claimants’ gross salary Kshs. 56,000/= per month, Basic salary Kshs. 35,400/= per month, House allowance Kshs. 9,600/= per month, commuter allowance Kshs. 5,000/= per month, leave allowance Kshs. 6,000/= per month.

(i) Declaration that the respondents letters of appointments dated 14th December 2018 and/or accepted by the claimants on specific dates are valid and enforceable contracts against the respondents.

(j) In the alternative if the claimants are terminated, the defendants be ordered to pay the entire period of the contract from 2nd January 2019 to 1st January 2022 in terms of gross salary and allowances subject to salary increments.

(k) General damages

(l) Costs and interest of the suit.

2. The application is supported by affidavits of all the applicants sworn to on 5th April 2019 and annextures attached.

3. The applicants filed a memorandum of claim in which is sought confirmation of the interim orders and in particular a declaration that the respondents’ letters of appointments dated 14th December 2018 and/or accepted by the claimants on specific dates are valid and enforceable contracts against the respondents and in the alternative, if the claimants contracts are terminated, the defendants be ordered to pay the entire period of the contracts from 2nd January 2019 to 1st January 2022 and in addition make an award of general damages.

4. The application was amended on 10th May 2019 but the amendment did not change the application substantially except inclusion of a prayer for specific performance and payment of specified arrear salaries.

5. The application is opposed vide a replying affidavit of Isaiah Ogwe, the County Secretary and Head of County Public Service, Homa Bay County in which is admitted that the respondents recruited and appointed the claimants/applicants to the stated positions and issued them with letters of appointment dated 14th December 2018 for 3 years contract. The applicants were subsequently deployed to various departments by letters dated 17th December 2018.

6. The County Executive by a letter dated 27th December 2018 shelved the recruitments until such a time that the financial position of the county government improved following recommendations by the controller of budget in exercise of her powers under Article 288 of the constitution. Decision of the County Executive was then conveyed to the Board on 22nd January 2019.

7. The deponent states that to proceed with the recruitment would be in contravention of the law and recommendations by the controller of budget.

8. That the application lacks merit and it be dismissed.

Determination

9. The issue for determination at this stage of the proceedings is whether the applicants have satisfied the requirements of grant of a conservatory order to preserve the employment of the applicants pending the hearing and determination of the suit.

10. The matter is guided by the Supreme Court decision in Gitirau Peter Munya vs Dickson Mwenda Githinji and 2 others (2014) eKLR and the case of Giella vs Cassman Brown and Company Limited (1973) E.A 358on the prerequisites of grant of interim orders.

11. It is not in dispute that the applicants were employed as County Directors and Assistant Civil Engineers respectively on three year contracts which were still in place as at the time of filing this suit.

12. The appointments followed competitive recruitment publicly and the applicants had satisfied all the requirements of the jobs granted to them by the County Public Serviced board.

13. It is also not in dispute that the claimants had been deployed and commenced rendering service to the respondents until the County Secretary and head of Public Service nullified their appointments by a letter dated 9th January 2019.

14. The applicants filed this suit on 12th April 2019 after nullification of their positions.

15. The effect of the conservatory order sought by the applicants is to effectively reinstate them to their previous positions before hearing the suit on the merits.

16. The applicants have not satisfied the court that they are deserving of a mandatory conservative order pending the hearing of the suit on the merits. The Applicants will not suffer irreparable harm incapable of being remedied by either reinstatement and/or award of damages upon hearing and determination of the suit.

17. However, with regard to the prayer for payment of arrear salaries for services rendered which are not in dispute, the claimants have made out a case deserving of a mandatory interim order compelling the respondents to pay all arrear salaries and allowances to the applicants from the date of their appointment to the date their employment was halted.

18. In the final analysis the court makes the following order in favour of the applicants as against the respondents pending the hearing and determination of the suit:

(a) The 1st, 2nd, 3rd, 4th, 5th and 6th claimants/applicants be paid their arrear salary for services rendered from date of appointment on 14th December 2018 up to 9th January 2019, the date their employment was halted.

(b) The suit be set down for hearing on the merits.

(c) Costs in the cause.

Ruling Dated, Signed and delivered this 17th day of October, 2019

Mathews N. Nduma

Judge

Appearances

Mr. Ayayo for claimants/applicants

Mr. Orego for Respondents

Chrispo – Court Clerk