[2022] KEELRC 13137 (KLR)
The court found that the applicant had not established a prima facie case for the grant of the orders sought. The applicant admitted non-compliance with the transfer order and only provided explanations for his actions. The court noted that there were disputed facts regarding whether the applicant had reported to...
Source-derived case information.
- Citation
- [2022] KEELRC 13137 (KLR)
- Parties
- Applicant: Hesbon Dianga Odep; Respondent: County Government of Migori; Respondent: Migori County Public Service Board; Respondent: County Secretary, Migori County Government; Respondent: Chief Officer, Medical Services, Migori County Government; Respondent: Director of Medical Services, Migori County Government; Respondent: County Attorney
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause E039 of 2022
- Procedural Posture
- Interlocutory Application / Ruling on Motion for Reinstatement to Payroll and Suspension of Transfer Order
- Outcome
- motion dismissed
- Judges
- S Radido
- Legal Topics
- Salary Withholding, Employee Transfer, Interlocutory Injunctions, Prima Facie Case, Public Service Employment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hesbon Dianga Odep
Applicant
County Government of Migori
Respondent
Migori County Public Service Board
Respondent
County Secretary, Migori County Government
Respondent
Chief Officer, Medical Services, Migori County Government
Respondent
Director of Medical Services, Migori County Government
Respondent
County Attorney
Respondent
Procedural Posture
Interlocutory Application / Ruling on Motion for Reinstatement to Payroll and Suspension of Transfer Order
Legal Issues
- 1 Whether the applicant established a prima facie case for reinstatement to the payroll pending hearing and determination of the suit.
- 2 Whether the applicant is entitled to an order suspending the implementation of the posting/transfer order dated 14th July 2021.
Ratio Decidendi
The court found that the applicant had not established a prima facie case for the grant of the orders sought. The applicant admitted non-compliance with the transfer order and only provided explanations for his actions. The court noted that there were disputed facts regarding whether the applicant had reported to work at the new station, which could not be resolved at the interlocutory stage. Applying the standard tests for interlocutory relief—prima facie case, irreparable harm, balance of convenience, and delay in seeking relief—the court concluded that the applicant did not meet the threshold for the grant of the orders. Consequently, the motion was dismissed and the matter directed to...
Court Disposition
motion dismissed
Orders
- The motion dated 19 September 2022 is dismissed with costs in the cause.
- The cause should be progressed to a hearing on the merits.
Full Case Text
Judgment text and source record
44 paragraphs
Odep v County Government of Migori & 5 others (Cause E039 of 2022) [2022] KEELRC 13137 (KLR) (9 November 2022) (Ruling)
Neutral citation: [2022] KEELRC 13137 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Kisumu
Cause E039 of 2022
S Radido, J
November 9, 2022
Between
Hesbon Dianga Odep
Claimant
and
County Government of Migori
1st Respondent
Migori County Public Service Board
2nd Respondent
County Secretary, Migori County Government
3rd Respondent
Chief Officer, Medical Services, Migori County Government
4th Respondent
Director of Medical Services, Migori County Government
5th Respondent
County Attorney
6th Respondent
Ruling
1. For determination is a Motion dated 19 September 2022 by Hesbon Diang’a Odep (the applicant) seeking orders:i.…ii.Thatpending the hearing and determination of this application inter-partes, this Honourable Court be pleased to issue an order compelling the 1st Respondent to release the Claimant’s salary for the months of January – March 2021 and May 2022 to date.iii.Thatpending the hearing and determination of this suit, this Honourable Court be pleased to issue an order reinstating the Claimant to the payroll.iv.Thatpending the hearing and determination of this suit, this Honourable Court be pleased to issue an order suspending the implementation of the posting order dated 14th July 2021. v.Thatthe costs of this application be provided for.
2. The main grounds advanced by the applicant in support of the application are that after a strike called by the Kenya Medical Practitioners and Dentists Board was called off around 11 March 2021, he resumed work and reported to work until March 2021, but the Respondents failed to pay his remuneration and when he inquired he was issued with a show-cause notice; that sometime in April 2021, he made a complaint against his supervisor, the 4th Respondent and this led to inhumane treatment and transfer to Migori County Referral Hospital and that though the salary was reinstated in April 2021, it was again withdrawn in April 2022 despite him (the applicant) offering his services.
3. The 3rd Respondent filed a replying affidavit in opposition to the Motion on 21 September 2022. The County Secretary deponed in the affidavit that the applicant had not been reporting to work consistently, had absconded duty after transfer to Migori County Referral Hospital, and it was suspected he had mental health concerns.
4. The County Secretary also swore that the applicant's remuneration had been withheld because he had not been reporting on duty.
5. When the parties appeared for directions on 27 September 2022, the Court directed them to file and exchange a further affidavit and submissions.
6. The applicant filed a further affidavit (and submissions) on 11 October 2022, and the Respondents filed submissions on 8 November 2022 (should have been filed/served before 31 October 2022).
7. The Court has considered the Motion, affidavits, and submissions.
8. Proposed order (ii), as sought by the applicant, was transient and became spent when the Court did not grant it at the ex-parte stage on 20 September 2022.
9. The Court is therefore only concerned with the twin questions of whether it should grant an order restoring the applicant to the payroll and suspending his posting/transfer order.
10. A Court confronted with the type of application now under consideration must caution itself not to delve into a determination of disputed facts.
11. The applicant acknowledges that he was posted to Migori County Referral Hospital but explains that he did not comply with the order because he had a pending/unresolved complaint against the 4th Respondent, who was based at the county headquarters and, therefore, he feared for his safety, hence the failure to comply.
12. The applicant further asserts that he has been reporting to work at Kehancha Sub-County Hospital (previous workstation).
13. The Respondents contend that after the transfer/posting, the applicant has not reported for deployment and, consequently, the decision to withhold his remuneration.
14. The applicant was expected to establish a prima facie case to obtain the orders sought.
15. The applicant was transferred in July 2021. He moved the Court in September 2022. He admits that he has not complied with the transfer order. He has attempted to give explanations.
16. The Court cannot establish which of the assertions is truthful before the same are tested or interrogated.
17. Using the standard test of prima facie case, irreparable damages, the balance of convenience and the delay in moving the Court, the Court declines to grant the orders sought.
Conclusion and Orders 18. The Motion is dismissed with costs in the cause.
19. The Cause should be progressed to a hearing on the merits.
DELIVERED VIRTUALLY FROM MALINDI, DATED, AND SIGNED ON THIS 9TH DAY OF NOVEMBER 2022. RADIDO STEPHEN, MCIARBJUDGEAppearancesFor applicant Mr Ojuro instructed by Otieno, Yogo, Ojuro & Co. AdvocatesFor Respondents Mr Okong’o instructed by Okongo, Wandago & Co. AdvocatesCourt Assistant N. Oyugi