[2020] KEELRC 897 (KLR)
The court found that the applicant had not satisfied the requirements for the grant of an interim injunction as established in Giella v Cassman Brown. Specifically, the applicant failed to establish a prima facie case and did not demonstrate that he would suffer irreparable harm that could not be remedied by damages...
Source-derived case information.
- Citation
- [2020] KEELRC 897 (KLR)
- Parties
- Applicant: Michael Odhiambo Yiembo; Respondent: Eng. George J. O. Odedeh; Respondent: Cabinet Secretary, Ministry of Water and Sanitation; Respondent: Chairman, Lake Victoria South Water Works Development Agency; Respondent: Lake Victoria South Water Works Development Agency Board of Directors; Respondent: The Attorney General; Respondent: State Corporations Advisory Committee
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition 35 of 2019
- Procedural Posture
- Constitutional Petition / Ruling on Interlocutory Application for Interim Injunction
- Outcome
- application dismissed
- Judges
- MN Nduma
- Legal Topics
- Interim Injunctions, Appointment of Ceo, Prima Facie Case, Irreparable Harm, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Odhiambo Yiembo
Applicant
Eng. George J. O. Odedeh
Respondent
Cabinet Secretary, Ministry of Water and Sanitation
Respondent
Chairman, Lake Victoria South Water Works Development Agency
Respondent
Lake Victoria South Water Works Development Agency Board of Directors
Respondent
The Attorney General
Respondent
State Corporations Advisory Committee
Respondent
Procedural Posture
Constitutional Petition / Ruling on Interlocutory Application for Interim Injunction
Legal Issues
- 1 Whether the applicant has established a prima facie case to warrant the grant of an interim injunction restraining the appointment of the 1st respondent as CEO pending hearing of the petition.
- 2 Whether the applicant has demonstrated that he will suffer irreparable harm not compensable by damages if the interim order is not granted.
- 3 Whether the balance of convenience lies in favour of granting the interim injunction.
Ratio Decidendi
The court found that the applicant had not satisfied the requirements for the grant of an interim injunction as established in Giella v Cassman Brown. Specifically, the applicant failed to establish a prima facie case and did not demonstrate that he would suffer irreparable harm that could not be remedied by damages if the interim order was not granted. The court held that the dispute raised in the application could only be determined after a full hearing of the petition on its merits. Consequently, the application for interim injunction was dismissed for lack of merit, and directions were issued for the expeditious hearing of the main petition.
Court Disposition
application dismissed
Orders
- The application dated 3rd October 2019 is dismissed.
- The petition to proceed on the merits.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
PETITION NO. 35 OF 2019
(Before Hon. Justice Mathews N. Nduma)
MICHAEL ODHIAMBO YIEMBO.........................................................PETITIONER
VERSUS
ENG. GEORGE J. O. ODEDEH.....................................................1ST RESPONDENT
CABINET SECRETARY,
MINISTRY OF WATER AND SANITATION..............................2ND RESPONDENT
CHAIRMAN, LAKE VICTORIA SOUTH WATER
WORKS DEVELOPMENT AGENCY..........................................3RD RESPONDENT
LAKE VICTORIA SOUTH WATER WORKS
DEVELOPMENT AGENCY BOARD OF DIRECTORS.......... 4TH RESPONDENT
THE ATTORNEY GENERAL.......................................................5TH RESPONDENT
STATE CORPORATIONS ADVISORY COMMITTEE.............6TH RESPONDENT
RULING
1. The application dated 3rd October 2019 sought to stop the appointment of the 1st Respondent as the Chief Executive Officer of Lake Victoria South Water Works Development Agency, the 4th Respondent pending the hearing and determination of the Petition. The respondents filed replying affidavit on 7/11/2019.
2. Upon considering the application together with the supporting affidavit and annexures thereof. Having also considered the replying affidavits and the submissions by all the parties:
3. The court finds that the dispute presented in this application cannot be determined before the petition is heard and determined on the merits.
4. The Petitioner/Applicant has not satisfied the requirements of granting an interim injunction set out in the case of Giella – VS – Cassman Brown & Co. Ltd (1973) E. A 358 in that no prima facie case has been established and the Applicant has not demonstrated that he shall suffer irreparable harm not capable of being remedied by way of damages and costs if the interim order is not granted.
5. Accordingly, the application lacks merit and is dismissed.
6. The petition to proceed on the merits.
7. Due to the prevailing COVID 19 situation, the court takes this opportunity to give directions on the hearing and determination of the petition as follows:
8. The respondents to file responses to the petition within 14 days from date of the ruling. The petitioner to file supplementary affidavit, if any and final submissions within 14 days of service and the respondents to file submissions within 14 days of service.
Ruling Dated, Signed and delivered at Nairobi this 11th day of June, 2020
Mathews N. Nduma
Judge
ORDER
In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on 15th March 2020, this ruling has been delivered to the parties online with their consent. They have waived compliance with Order 21 rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 18 of the Civil Procedure Act (chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
Mathews N. Nduma
Judge
Appearances
Mr. Odhiambo for Petitioner/Applicant
Mr. Orego for Respondents
Chrispo – Court Clerk