[2017] KEELRC 539 (KLR)
The court found that the Claimant remained the substantive holder of the position of Senior Internal Auditor pending the conclusion of the disciplinary process, as affirmed by the Respondents' Legal Officer. The court determined that granting the injunctive order sought by the Claimant would not prejudice the...
Source-derived case information.
- Citation
- [2017] KEELRC 539 (KLR)
- Parties
- Claimant: Moses Nyambega Ondieki; Respondent: Vice Chancellor, Masai Mara University; Respondent: Chairman of Council, Maasai Mara University; Respondent: Maasai Mara University; Interested Party: Chairman, Audit Committee, Maasai Mara University
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 506 of 2016
- Procedural Posture
- Employment Cause / Ruling on Interlocutory Injunction Application and Transfer of Cause
- Outcome
- Application for injunctive relief allowed; cause transferred to Nairobi; costs in the cause.
- Judges
- MSA Makhandia
- Legal Topics
- Injunctive Relief, Disciplinary Procedure, Reinstatement, Managerial Prerogative
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Nyambega Ondieki
Claimant
Vice Chancellor, Masai Mara University
Respondent
Chairman of Council, Maasai Mara University
Respondent
Maasai Mara University
Respondent
Chairman, Audit Committee, Maasai Mara University
Interested Party
Procedural Posture
Employment Cause / Ruling on Interlocutory Injunction Application and Transfer of Cause
Legal Issues
- 1 Whether the Claimant is entitled to an order prohibiting the Respondents from declaring a vacancy or filling the Claimant's position pending determination of the claim.
- 2 Whether granting the injunctive relief would prejudice the Respondents or unduly interfere with the employer's managerial prerogative.
- 3 Whether the matter should be transferred to Nairobi for further proceedings.
Ratio Decidendi
The court found that the Claimant remained the substantive holder of the position of Senior Internal Auditor pending the conclusion of the disciplinary process, as affirmed by the Respondents' Legal Officer. The court determined that granting the injunctive order sought by the Claimant would not prejudice the Respondents nor amount to undue interference with their managerial prerogative, especially given the court's statutory jurisdiction to order reinstatement or re-engagement. The court therefore allowed the order prohibiting the Respondents from declaring a vacancy or filling the Claimant's position pending the hearing and determination of the main claim. Additionally, for personal...
Court Disposition
Application for injunctive relief allowed; cause transferred to Nairobi; costs in the cause.
Orders
- An order is issued prohibiting the Respondents from declaring a vacancy and/or filling up the Claimant’s position in the Respondent’s institution pending the hearing and determination of the application and the main claim.
- The cause is transferred to Nairobi for further proceedings and hearing before any other Judge.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU
CAUSE NO. 506 OF 2016
MOSES NYAMBEGA ONDIEKI CLAIMANT
V
VICE CHANCELLOR,
MASAI MARA UNIVERSITY 1ST RESPONDENT
CHAIRMAN OF COUNCIL,
MAASAI MARA UNIVERSITY 2ND RESPONDENT
MAASAI MARA UNIVERSITY 3RD RESPONDENT
AND
CHAIRMAN, AUDIT COMMITTEE,
MAASAI MARA UNIVERSITY INTERESTED PARTY
RULING
1. The Claimant herein instituted legal proceedings against the Respondent through the firm of Kwengu & Co. Advocates.
2. The Statement of Claim was accompanied by an application under certificate of urgency, but because the motion sought orders which were substantially similar to the substantive reliefs sought, the Court directed that the Cause be expedited for hearing and timelines were set to achieve that objective on 26 January 2017.
3. The parties complied save for filing of Agreed Issues and on 3 March 2017, the Court directed that Agreed Issues be filed before 17 March 2017.
4. However, the Claimant changed his Advocates on record who filed a motion dated 24 April 2017.
5. The motion sought
1. …(spent)
2. …(spent)
3. ….(spent)
4. THAT pending the hearing and determination of this application and the main claim herein, this Honourable Court do issue an order prohibiting the Respondent from declaring a vacancy and/or filing up the Claimant’s position in the Respondent’s institution.
6. The first 3 orders (now spent) sought by the Claimant were granted on 26 April 2017 because they were procedural and were seeking the motion to be certified as urgent and leave to amend the Statement of Claim. Both parties were represented during the proceedings, but the determination of the order seeking injunctive relief was to wait taking of arguments at an inter parteshearing.
7. The motion was served and the Court took arguments on 10 July 2017. Pending delivery of ruling today, the Court granted temporary relief.
8. The Claimant was at the times material to the application a Senior Internal Auditor until his suspension on 23 February 2016.
9. On 24 March 2017, the 3rd Respondent advertised several vacancies including that of Internal Auditor-Grade MMU 13 and the advertisement prompted the Claimant to file the instant application.
10. The Respondents filed a replying affidavit through Alfred Ongeta Nyabochwa, its Legal Officer in opposition to the motion on 7 July 2017.
11. The Legal Officer has affirmed on oath in paragraphs 3, 5 and 7 that the Claimant remains in his position pending the disciplinary case.
12. Considering the deposition(s), and further considering that the Court has now been granted the jurisdiction to order reinstatement and or re-engagement, the Court is of the view that granting the order sought would not prejudice the Respondents or amount to undue interference with an employer’s managerial prerogative.
13. The Court therefore allows the proposed order 4.
14. The Court further orders, based on personal reasons, that this Cause be transferred to Nairobi for further proceedings and hearing before any other Judge.
15. Costs in the cause.
Delivered, dated and signed in Nakuru on this 6th day of November 2017.
Radido Stephen
Judge
Appearances
For Claimant Mr. Onyony instructed by Onyony & Co. Advocates
For Respondent Mr. Lubullelah instructed by Lubullelah & Associates, Advocates
Court Assistants Nixon/Martin