[2025] KEELRC 640 (KLR)

Njeri v New Kenya Co-operative Creameries Ltd (Employment and Labour Relations Petition E208 of 2024) [2025] KEELRC 640 (KLR) (27 February 2025) (Ruling)

Neutral citation: [2025] KEELRC 640 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Employment and Labour Relations Petition E208 of 2024

MN Nduma, J

February 27, 2025

Between

Jackline Njeri

Petitioner

and

New Kenya Co-Operative Creameries Ltd

Respondent

Ruling

1. The applicant in the Notice of Motion dated 18/12/2024 seeks an order in the following terms:- 1. Spent

2. Spent

3. That the honourable court does order the immediate and unconditional reinstatement of the Applicant to her position.

4. That the honourable court be pleased to grant an injunction restraining the Respondent from advertising, interviewing candidates for and/or otherwise recruiting and filling the position of Chief Manager, Human Resource and Administration pending the hearing and determination of the petition.

5. That the costs of this application be in the cause

2The application is premised on grounds (a) to (j) set out on the face of the Notice of Motion which may be summarized that the Applicant was employed as Chief Manager, Human Resource Administration on 24/6/2024.

3That on 12/12/2024, the Respondent’s acting Managing Director issued the Petitioner with a letter dated 13/12/2024 purporting to terminate the Petitioner’s employment with immediate effect without cause.

4The Managing Director purported to implement a board decision made during the 93rd full board seating held on 10/12/2024 where per the agenda paper of the meeting the employment of the Petitioner was not subject of discussion.

5That it is obvious that the decision was not preceded by any procedural process giving opportunity to the Petitioner to be heard. That the same is ipso facto unfair, unsound and irrational.

6That the employment was on a three-year contract and the Claimant had barely served for six months.

7That the action by the Respondents amounts to unfair labour practice and infringes on the right of the Petitioner to equality before the law; to human dignity; non discrimination and to protection of socio-economic rights.

8That the Petitioner has been subjected to psychological torture.

9That the Respondent has been advertising vacancies for other senior level managerial positions of other colleagues who were similarly un-ceremoniously and irregularly terminated.

10That if the Respondents are not injuncted as prayed the Applicant is apprehensive that the Respondents will irregularly initiate a replacement process.

11The application is buttressed by supporting affidavit of the Petitioner emphasizing the aforesaid facts adding that she had applied for the position of Chief Manager, Human Resource and Administration on 17/3/2024 pursuant to an advertisement by the Respondent on 29/2/2024. That she attended first interview before senior management on 30/4/2024 and 2nd interview before full board on 3/5/2024.

12That on 14/3/2024, the court had issued an order in ELRC No. E004 of 2024 injuncting the Respondent from filling the position of Chief Manager, Human Resource and Administration Officer.

13That the company secretary brought to the attention of the Respondent the existence of the court order in meetings of the Human Resource and General-Purpose Committee in April and this committee severally reported to the Board in various meetings.

14That the Respondent was at all material times aware of the court order and its position was that it had only filled the position in Acting capacity and was therefore not in contempt of court order.

15That the court order of 14/3/2024 was vacated by the court in its ruling of 14/6/2024.

16The Respondent subsequently resumed this recruitment process and issued the Petitioner with a letter of appointment in the present position on 24/6/2024 after the orders of 14/3/2024 had been vacated.

17The deponent states that her role as Chief Manager Human Resource and Administration began on 5/7/2024 after the acting Chief Manager Human Resource and Administration revoked the acting position.

18The Applicant submits that the position held by her was filled after the court order of 14/3/2024 had been vacated. That the application has merit and it be granted as prayed.

Replying affidavit 19The Respondent filed grounds of opposition and Relying affidavit to the Application which can be summarized that the order of reinstatement cannot at this stage be granted as it is a matter for determination upon hearing of the Petition on the merits, and reinstatement is not sought in the Petition. That the position of HR and Administration is critical to the smooth running of the Respondent’s operations. That the Respondent has a nationwide staff component of 1544 employees and distributes its products all over the country. Therefore, the Human Resource and Administration Management position is vital to its operations. That the Respondent will be prejudiced if it is restrained from making an appointment at least in an acting capacity pending the hearing and determination of the main petition.

Determination 20The parties made oral submissions before court which the court has considered together with the deposition filed by both parties.

21The court has determined that the appointment letter of the Petitioner for the position of Chief Manager Human Resource and Administration is dated 24/6/2024. That the orders of the court stopping filling of this position were issued on 14/3/2024 and the said orders were vacated on 14/6/2024. The court is satisfied that the recruitment process in which the Petitioner had participated had commenced on 29/2/2024 when this position was advertised before the court order was issued.

22The court is satisfied that when the Respondent became aware of the court order it stopped the recruitment underway in deference to the court order and did not appoint the Claimant until after the court order had been vacated.

23The Respondent has not contested that it did not follow any due process in terminating the appointment of the Claimant and has not contested either that the termination was for no fault by the Petitioner. The only reason advanced by the Respondent is that the Board was not made aware of the court order when it interviewed the Petitioner on 30/4/2024 and 3/5/2024 respectively.

24It is the court’s considered finding that the Petitioner has made a prima facie case with a probability of success as set out in the case of Giella versus Cassman Brown Ltd & Co Ltd (1973) EA 358. The court is satisfied that the balance of convenience favours the grant of the interim injunction to conserve the position hitherto held by the Petitioner pending the hearing and determination of the suit there being no fault at all adduced on the part of the Petitioner/Applicant in getting her recruited to the said position nor is there any dispute regarding the Petitioner’s suitability to hold the position.

25Accordingly, the court finds that the application has merit and grants the same in terms of prayer 4 of the Notice of Motion in the following terms:-a.An injunction is hereby issued restraining the Respondent from advertising, interviewing candidates for and/or otherwise recruiting or filing of the position of Chief Manager, Human Resource and Administration pending the hearing and determination of the petition.b.The Respondent is at liberty to allow its earlier appointment of the petitioner to the position of Chief Manager, Human Resource and Administration to remain in place there being no prima facie evidence that the Respondent acted knowingly in defiance of the court order when it interviewed the Petitioner.c.Costs in the cause.

DATED AT NAIROBI THIS 27TH DAY OF FEBRUARY 2025MATHEWS NDUMAJUDGEAppearance:Mr. Orao for Petitioner/ApplicantMs. Wataka for RespondentMr. Kemboi – Court Assistant