https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1626

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT & LABOUR RELATIONS COURT** **AT NAIROBI** **ELRC CAUSE NO. E026 OF 2026** ***(Before Hon. Lady Justice Hellen Wasilwa, J)*** **JOB BENARD MAKANGA………...………..CLAIMANT/APPLICANT** **VS** **KENYATTA NATIONAL HOSPITAL…………………1ST RESPONDENT** **DR. RICHARD LESIYAMPE LERESIAN** **(Ag. CHIEF EXECUTIVE OFFICER,** **KENYATTA NATIONAL HOSPITAL)…………….…2ND RESPONDENT** **BOARD OF DIRECTORS,** **KENYATTA NATIONAL HOSPITAL……..………….3RD RESPONDENT** **RULING** 1. The Claimant/ Applicant filed a Notice of Motion application dated 13th March 2026 seeking orders: - 2. *Spent* 3. *This Honourable Court be pleased to issue an order directing the Respondents to immediately allow the Applicant to resume duty and access his office to continue discharging his duties in accordance with the contractual terms, conditions of service, duties and responsibilities without interference pending the hearing and determination of this application and the main suit.* 4. *This Honourable Court be pleased to issue an order directing the Respondents to immediately allow the Applicant to resume duty and access his office to continue discharging his duties in accordance with the contractual terms, conditions of service, duties and responsibilities without interference pending the hearing and determination of this suit.* 5. *This Honourable Court be pleased to issue an order restraining the Respondents, their agents or servants from appointing, designating or assigning any person to act in the office of the Senior Director Corporate Services or to perform the duties attached to that office pending the hearing and determination of this suit.* 6. *This Honourable Court be pleased to issue a permanent injunction restraining the Respondents, their agents, servants or anyone acting under their authority from intimidating, threatening, harassing, interfering with, suspending, interdicting or taking any adverse administrative or disciplinary action against the Applicant arising from or related to the matters forming the subject of this suit.* 7. *This Honourable Court be pleased to revoke, nullify and set aside the Respondents’ decision placing the Applicant on compulsory/forced leave and all subsequent extensions thereof, the same having been issued unlawfully and contrary to the law.* 8. *This Honourable Court be pleased to revoke and set aside the forced annual leave imposed upon the Applicant for sixteen (16) days and eighteen (18) days respectively, and order that the said thirty-four (34) days be reinstated to the Applicant’s annual leave balance for future lawful utilization.* 9. *This Honourable Court be pleased to declare that the imposition of compulsory leave and the forced exhaustion of the Applicant’s annual leave are unlawful, irregular and in violation of the Applicant’s right to fair labour practices.* 10. *The Respondents be ordered to cease and desist from any further unlawful administrative actions against the Applicant pending the hearing and determination of this suit.* 11. *The Honourable Court be pleased to grant leave to the Claimant/Applicant leave to amend his Memorandum of Claim dated 13th January 2026.* 12. *This Honourable Court be pleased to grant any other or further orders that it may deem just and expedient in the circumstances.* 13. *Costs of this Application be provided for.* **Claimant/Applicant’s Case** 1. It was stated that the Applicant is the Senior Director, Corporate Services of the 1st Respondent, employed on a fixed-term contract of five (5) years commencing 21st February 2022. 2. It is the Applicant's case that this suit arose from the unlawful extension and conversion of his annual leave by the Respondents. 3. The Applicant avers that the Respondents twice unlawfully extended his annual leave, resulting in the forced exhaustion of his entire annual leave entitlement for the current financial year without his consent and outside the procedures prescribed under the 1st Respondent's Human Resource Policies and Procedures Manual. 4. He further avers that upon exhaustion of his leave days, he was scheduled to resume duty on 27th February 2026, however, before resumption, the Respondents issued yet another directive placing him on compulsory leave for thirty (30) working days effective 25th February 2026. 5. It is the Applicant’s case that compulsory leave is neither anchored in nor provided for under the existing Human Resource Policies and Procedures Manual and is therefore procedurally and substantively irregular. 6. The Applicant avers that the cumulative effect of the unlawful leave extensions, immediately followed by compulsory leave, is that he has been continuously excluded from his workplace. He contends that the sequential administrative actions being: forced annual leave, repeated extension, exhaustion of leave days, and subsequent compulsory leave demonstrate a deliberate pattern of administrative exclusion directly connected to the subject matter of this Cause. 7. The Applicant further avers that his position as Senior Director, Corporate Services is an apex oversight role responsible for finance, human resources, administration, planning and strategy, and facilities and services. He contends that prolonged exclusion from office materially interferes with his ability to discharge his statutory and contractual mandate. 8. He also contends that since he serves under a performance contract with measurable targets, his continued exclusion directly undermines his ability to meet his performance obligations and creates unfair exposure in performance evaluation. 9. The Applicant states that his contract is due for renewal in March 2027 and that performance appraisal and institutional record during the current contract cycle are material considerations in renewal decisions. He contends that the ongoing exclusion creates a real, imminent and measurable risk of prejudice to his contract renewal prospects that is continuous, cumulative and incapable of adequate remedy by damages alone. 10. In his supplementary affidavit dated 30th March 2026, the Applicant further avers that the 2nd Respondent confirmed that the special internal audit requested by the 3rd Respondent has since been completed, therefore, there is no justification for the continued denial of his access to office, and that whatever measures the Respondents may wish to take do not necessitate his exclusion from the workplace. He states that he has no intention of interfering with any measures the Respondents may wish to pursue. 11. The Applicant contends that the Respondents have failed to attach any proof in support of their assertion that the compulsory leave was issued in strict compliance with the 1st Respondent's Human Resource Manual, and that such a bare allegation is insufficient. 12. He further avers that the application to amend the Memorandum of Claim dated 13th January 2026 was necessitated by the Respondents' own escalating actions in imposing further forced and compulsory leave, which actions are directly connected to the subject matter of the main suit. 13. The Applicant asserts that his application meets the threshold established in ***Giella v Cassman Brown [1973] EA 358***: he has demonstrated a high likelihood of success on the merits, as the forced and compulsory leave directives were unlawful, procedurally unfair, and violated his rights under Articles 47 and 50 of the Constitution, the Employment Act, 2007, and the Fair Administrative Action Act, 2015; he has suffered, and continues to suffer, irreparable harm including reputational damage, professional prejudice and psychological harm which monetary compensation cannot adequately remedy; and the balance of convenience tilts d in his favour, as the audit that ostensibly precipitated his exclusion has been concluded, while the harm to him of continued exclusion is ongoing and immeasurable. 14. It is the Applicant’s case that the grant of interim orders will not determine the suit on its merits, but will serve to protect his constitutional and statutory rights pending the hearing and determination of the main cause. 15. He avers that the Respondents' actions violate his rights under Article 41 on fair labour practices and Article 47 on fair administrative action of the Constitution, and offend the Employment Act. Therefore, he urged urges this Honourable Court to grant leave to amend the Memorandum of Claim, issue a temporary injunction restraining the Respondents from issuing further unlawful leave directives, and order that he be permitted to resume and continue his employment in accordance with the terms and conditions of his contract. **Respondents’ Case** 1. In opposition to the application, the Respondents filed a replying affidavit dated 23rd March 2025, sworn by the Acting Chief Executive Officer of the 1st Respondent, Dr. Richard Lesiyampe Leresian. 2. It is the Respondents' case that the instant application is an abuse of the court process as it is a persistent attempt by the Applicant to thwart a lawful, Board-directed internal audit into revenue leakages under the Social Health Authority (SHA) claims management process, a process that falls squarely within the Applicant's own supervisory remit as Senior Director, Corporate Services. 3. The Respondents aver that upon the Applicant's return from approved annual leave on 12th January 2026, the 2nd Respondent immediately convened a meeting with him and the Director of Finance to disclose a preliminary SHA dashboard alert revealing rejected and returned claims exposing the 1st Respondent to potential losses then estimated at Kshs. 512,507,407.10, arising from avoidable operational failures namely late submissions, missing documentation, coding errors and non-compliance with the SHA Act, 2023. 4. The Respondents contend that in the lawful exercise of statutory and contractual authority, the 2nd Respondent directed the Applicant to extend his annual leave by 18 days to facilitate an unfettered internal audit, and subsequently issued the internal memo of 9th January 2026 and the further letter of extension of annual leave dated 4th February 2026. 5. They further aver that on 22nd January 2026, the Board of Management, having received an update on the SHA matter, directed that a special internal audit be conducted on the SHA claims management process. 6. The Respondents aver that upon the exhaustion of the Applicant's extended leave, and immediately prior to his scheduled resumption on 27th February 2026, the 2nd Respondent issued the letter dated 25th February 2026 placing the Applicant on compulsory leave for thirty (30) working days pursuant to the Board's directive. 7. They maintain that this was a necessary protective administrative measure to safeguard the integrity of the ongoing audit and to prevent any perception or reality of interference by the very officer whose directorate was under scrutiny. 8. It is the Respondents’ case that the special internal audit requested by the Board of Management has now been completed and the Board is in the process of taking the necessary measures in line with the applicable law. 9. The Respondents contend that the leave extensions and compulsory leave were lawful administrative directives and not unlawful or forced exhaustion of leave as alleged. 10. They aver that the compulsory leave was issued in strict compliance with the 1st Respondent's Human Resource Manual, the Public Service Regulations and the Board's directive, and is neither procedurally irregular nor substantively unlawful, being expressly anchored in the need to protect public funds under the Applicant's oversight. 11. The Respondents contend that the Applicant's exclusion from the workplace is not connected to any *mala fide* motive as alleged, and that the Applicant's seniority of role does not immunize him from administrative measures required to safeguard institutional integrity. 12. They further contend that the Applicant's performance contract and contract renewal prospects are matters for the 3rd Respondent to evaluate on merit after the audit process is concluded and any corrective action implemented. 13. It is the Respondents' case that no constitutional or statutory rights have been violated, and on the contrary, they have acted in strict fidelity to Articles 41, 47, 50 and 232 of the Constitution, the Employment Act, 2007 and the Fair Administrative Action Act. 14. They aver that the Applicant continues to receive his full emoluments and benefits and faces no disciplinary charges at this stage, and the alleged irreparable harm is no more than speculative prejudice unsupported by any justification. 15. The Respondents aver that the Applicant has failed to demonstrate any prima facie case with a probability of success, that he continues to receive his full emoluments and benefits, faces no disciplinary charges at this stage, and that the alleged irreparable harm is speculative prejudice without justification. 16. They assert that the balance of convenience overwhelmingly favours the Respondents and the broader public interest, as granting the orders sought would interfere with the Respondents' statutory mandate to ensure proper accountability for the use of public resources, and that the audit process ought to be allowed to run its course unhindered. 17. The Respondent aver that granting the orders would effectively determine the suit without a full hearing on the merits, thereby violating the Respondents' right to a fair hearing under Article 50 of the Constitution. 18. The Respondents additionally aver that the application is premature, an abuse of process and a breach of the doctrine of ripeness, as the Applicant has not exhausted the internal grievance mechanisms available under the Human Resource Manual, including appeal to the 3rd Respondent, and no cause of action has as yet crystallised to necessitate curial intervention. 19. They further contend, without prejudice to the foregoing, that the question of compulsory leave constitutes a new cause of action which cannot be addressed within the present proceedings. **Claimant/Applicant’s Submissions** 1. The Applicant submitted on three issues: whether the Claimant/Applicant has met the threshold for grant of interlocutory injunctive relief as laid down in *Giella v Cassman Brown* and subsequent authorities; whether the Claimant should be granted leave to amend his Memorandum of Claim dated 13th January 2026; whether costs of the application should be provided for. 2. On the first issue, the Applicant submitted that the conditions for grant of an injunction were set out in ***Giella v Cassman Brown & Co Ltd (1973) EA 358***, being: that the applicant must establish a prima facie case with probability of success; that the applicant will suffer injury not compensable in damages; and that where the court is in doubt, the application is determined on a balance of convenience. 3. The Applicant further submitted that these conditions are sequential, in that the second condition can only be addressed if the first is satisfied, relying on [***Ntima Housing Co-operative Society Ltd v Housing Finance Company of Kenya Ltd [2018] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2018/3179/eng%402018-10-18). 4. On *prima facie* case, the Applicant relied on [***Mrao Ltd v First American Bank of Kenya Ltd& 2 others [2003] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2003/175/eng%402003-03-07), where the court defined it as: *"a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter."* 5. It was submitted that a prima facie case with probability of success has been demonstrated, as the forced leaves and compulsory leave imposed were unlawful, procedurally unfair and violated the Applicant's rights under Articles 22, 23, 27, 47, 50 and 236 of the Constitution, Section 12 of the Employment and Labour Relations Court Act, 2014, the Employment Act, 2007 and the Fair Administrative Action Act, 2015. 6. On irreparable harm, it was submitted that the Applicant has suffered and continues to suffer irreparable harm in that the sequential administrative actions including forced annual leave, repeated extension, exhaustion of leave days and subsequent compulsory leave demonstrate a pattern of continued administrative exclusion that materially interferes with his ability to discharge his statutory and contractual mandate. 7. The Applicant argued that his performance appraisal, institutional record and contract renewal prospects, his contract being due for renewal in March 2027 cannot be adequately compensated by a later award of damages. 8. In support of his position, the Applicant relied on [***Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2424/eng%402018-06-29)for the position that irreparable injury is one that cannot be adequately compensated in damages, and on ***Waithaka v Industrial and Commercial Development Corporation (2001) eKLR*** for the proposition that an injunction may issue even where damages would ordinarily suffice, the court having stated that *"money is not everything at all times and in all circumstances."* 9. On balance of convenience, the Applicant relied on [***Pius Kipchirchir Kogo v Frank Kimeli Tenai (Supra)***](https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2424/eng%402018-06-29)for the position that the balance of convenience requires the court to assess whether the inconvenience to the applicant of withholding the injunction would be greater than the inconvenience to the respondent of granting it. 10. It was submitted that the balance tilts decisively in the Applicant's favour given that the 2nd Respondent has himself confirmed in the replying affidavit that the special internal audit has been completed, and that whatever measures the Respondents may wish to take do not necessitate the Applicant's continued exclusion from office. 11. The Applicant submitted that the Respondents stand to suffer no prejudice whatsoever if the orders are granted. 12. On the second issue, the Applicant submitted that the Respondents subsequent directives that is further extending his leave by 16 days effective 5th February 2026 and thereafter issuing him compulsory leave for 30 working days effective 25th February 2026; these actions were done after the filing of the Memorandum of Claim dated 13th January 2026 and therefore necessitate its amendment. 13. The Applicant submitted that no prejudice will be occasioned to the Respondents, who are yet to file a response to the Memorandum of Claim. 14. On costs, the Applicant submitted that costs are governed by Section 27 of the Civil Procedure Act and are at the court's discretion, with the foundational principle being that costs follow the event. Reliance was placed on ***Republic v Rosemary Wairimu Munene v Ihururu Dairy Farmers Co-operative Society Ltd Judicial Review Application No. 6 of 2014***. The Applicant prayed that the court find the application merited and award costs accordingly. **Respondents’ Submissions** 1. The Respondents relied on the settled conditions for grant of an interlocutory injunction as set out in ***Giella v Cassman Brown & Co Ltd [1973] EA 358*** and submitted that the Applicant has failed to satisfy any of the three limbs. 2. They further relied on [***Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2003/175/eng%402003-03-07)for the position that a prima facie case is not merely an arguable case but one demonstrating an apparent infringement of a right requiring rebuttal, and on ***Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86*** for the proposition that the *Giella*conditions are sequential, such that failure to establish a *prima facie* case is fatal to the application. 3. On *prima facie* case, it was submitted that the Applicant has failed to establish a *prima facie* case, as the impugned actions were taken within the lawful authority of the employer in accordance with the Employment Act, the Human Resource Manual and applicable governance principles, and that the Applicant has not demonstrated any contractual, statutory or constitutional provision that was breached. 4. The Respondents argued that the 2nd Respondent, as Accounting Officer, is vested with authority to manage staff deployment including leave scheduling, and that the 3rd Respondent ratified and directed the audit process, placing the impugned actions within the framework of institutional governance. They cited [***Judicial Service Commission v Gladys Boss Shollei & another [2014] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2014/334/eng%402014-09-19), where the Court of Appeal emphasized that courts should exercise restraint in interfering with internal disciplinary and administrative processes, particularly where such processes are ongoing and lawfully constituted. 5. It was submitted that the Applicant is effectively seeking to halt an internal audit falling within his own supervisory domain, which undermines institutional integrity and raises serious concerns regarding accountability and good governance. 6. On irreparable harm, the Respondents submitted that the alleged irreparable harm is speculative, remote and legally untenable. 7. Relying on [***Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] KEELC 2424 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2424/eng%402018-06-29), it was submitted that irreparable harm must be real, immediate and incapable of compensation by damages. It was argued that the Applicant remains in employment, continues to receive full remuneration and benefits and has not been subjected to any disciplinary proceedings, such that there is no deprivation of livelihood or fundamental right warranting injunctive relief. The alleged prejudice to contract renewal was further argued to be speculative and contingent on future evaluation, falling short of the threshold for injunctive relief. 8. On balance of convenience and public interest, it was submitted that the balance of convenience overwhelmingly favours the Respondents, as the 1st Respondent is a national referral hospital entrusted with the management of public resources and the delivery of critical healthcare services, and that the internal audit is directed at safeguarding public funds and ensuring accountability. 9. The Respondents argued that granting the orders sought would undermine institutional governance and statutory accountability obligations, while the Applicant suffers no prejudice as he remains in employment and continues to enjoy all contractual benefits. Reliance was placed on [***Mrao Ltd v First American Bank of Kenya Ltd (Supra)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2003/175/eng%402003-03-07) for the proposition that injunctive relief is an equitable remedy that will not be granted to a party who fails to demonstrate good faith, and it was submitted that the Applicant's attempt to circumvent internal processes and halt an audit into his own directorate militates against the grant of such relief. 10. On prematurity and exhaustion of internal mechanisms, the Respondents submitted that the application is premature and offends the doctrine of exhaustion of administrative remedies, as the Applicant has not utilised the internal grievance mechanisms available under the Human Resource Manual including escalation to the 3rd Respondent, and no adverse decision has crystallised. Reliance was placed on [***Speaker of the National Assembly v James Njenga Karume [1992] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/1992/42/eng%401992-05-29), where the court held that *"where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed."* 11. On ripeness, the Respondents relied on [***Chovu v Director of Criminal Investigations & 7 others; Awale Transporters Limited & 2 others (Interested Parties) [2022] KEHC 14453 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/14453/eng%402022-10-31) for the position that ripeness is a principle of judicial restraint that prevents courts from entangling themselves in abstract disagreements by adjudicating disputes prematurely. It was submitted that no cause of action has crystallised to give rise to proceedings requiring the court's intervention and that the proceedings constitute a clear abuse of the court process. 12. On whether the orders would determine the suit, it was submitted that the orders sought, if granted, would effectively determine the main suit at an interlocutory stage, as the reinstatement of the Applicant and nullification of the administrative directives would dispose of the core issues in dispute without affording the Respondents an opportunity to be heard on the merits, in violation of their right to a fair hearing under Article 50 of the Constitution. 13. I have examined all the averments and submission of the parties herein. When the applicants filed this application, interim orders were granted directing the respondents to immediately allow the applicant resume duty and access his office to continue discharging his duties as per his contract. 14. These orders were extended to 30/11/2026 and also on 30/4/2026 pending the determination of this application. The respondents informed court on 30/4/2026 that the orders granted by court had been adhered to and it is therefore assumed that the order allowing the applicant to continue working is still inforce. 15. The respondents have averred that there was necessity to send the applicant on compulsory leave in order to safeguard the integrity of the audit that was ongoing and which has now been completed. They aver that the leave was done in conformity with the respondent’s HR manual and PS regulations and were not irregular. 16. The respondents having averred that the applicant was sent on compulsory leave to allow an audit process which is now completed, it beats logic for the respondents to oppose the application that seeks to prevent the extension of the said leave. That notwithstanding the purpose of the leave having been exhausted the applicant should ordinarily be allowed to go back to his work if he is not yet back. 17. In the circumstances, the prayer to allow the applicant resume work as allowed in the interim should stand. The prayer no. 4 seems to be subsumed in prayer no 2 and 3. Since there is no indication that the respondents or their agents and servants have indicated that they want to appoint anybody to act in the office of Senior Director corporate services or to perform duties attached to that office as it were, it is assumed that the applicant is in office. 18. The other prayers relating to the lawfulness or otherwise of the compulsory leave are prayers to be determined in the main claim. In relation to the application, I confirm prayers 2 by allowing prayer 3 pending the hearing and determination of this suit. 19. The applicant also sought orders for leave to amend his memorandum of claim. The applicant has averred that the application is necessitated by the fact that his rights have been infringed upon hence the need to amend the memo of claim. 20. I have noted that the respondents have never filed a memorandum of response to the claim filed on 13th January 2026. Amending the claim would therefore not prejudice the respondents as they would still have an opportunity to respond and file a memorandum of response. I would therefore grant the prayer by the applicants for leave to file an amended memorandum of claim which should be done within 15 days. Costs in the claim. **Dated, Signed and Delivered Virtually at Nairobi this 16th Day of June, 2026.** **HELLEN WASILWA** **JUDGE**