[2019] KEELRC 111 (KLR)
The court found that the Petitioners had established a prima facie case warranting the grant of interim conservatory orders. The court considered the requirements for such orders as set out in Giella v Cassman Brown and the Supreme Court's guidance in the Gitirau Munya case. The court held that, in the interest of...
Source-derived case information.
- Citation
- [2019] KEELRC 111 (KLR)
- Parties
- Applicant: Samwel Onyango Okelo; Applicant: Obware Kennedy Akoko; Respondent: The County Government of Kisumu; Respondent: The Governor, County Government of Kisumu
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 28 of 2019
- Procedural Posture
- Constitutional Petition / Ruling on Interim Conservatory Orders
- Outcome
- application granted
- Judges
- MN Nduma
- Legal Topics
- Unfair Termination, Right to Fair Labour Practices, Fair Administrative Action, Due Process in Employment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samwel Onyango Okelo
Applicant
Obware Kennedy Akoko
Applicant
The County Government of Kisumu
Respondent
The Governor, County Government of Kisumu
Respondent
Procedural Posture
Constitutional Petition / Ruling on Interim Conservatory Orders
Legal Issues
- 1 Whether the termination of the Petitioners' appointments was arbitrary and in violation of their constitutional rights.
- 2 Whether the Petitioners were denied the right to be heard before termination.
- 3 Whether the amendments to the Urban Areas and Cities Act justified the termination without due process.
Ratio Decidendi
The court found that the Petitioners had established a prima facie case warranting the grant of interim conservatory orders. The court considered the requirements for such orders as set out in Giella v Cassman Brown and the Supreme Court's guidance in the Gitirau Munya case. The court held that, in the interest of justice and fair play, the conservatory orders previously granted should be extended pending the hearing and determination of the substantive Petition. The court did not make a final determination on the merits of the Petition but recognized that the issues raised regarding due process and constitutional rights warranted preservation of the status quo until full hearing.
Court Disposition
application granted
Orders
- The interim conservatory orders restraining the Respondents from implementing the termination letters are extended pending the hearing and determination of the Petition.
- Parties to take directions on the hearing and determination of the Petition on the date of delivery of this Ruling.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
CAUSE NO. 28 OF 2019
(Before Hon. Justice Mathews N. Nduma)
SAMWEL ONYANGO OKELO & ANOTHER................................1ST PETITIONER
OBWARE KENNEDY AKOKO..........................................................2ND PETITIONER
VERSUS
THE COUNTY GOVERNMENT OF KISUMU.............................1ST RESPONDENT
THE GOVERNOR, COUNTY GOVERNMENT OF KISUMU...2ND RESPONDENT
RULING
1. The Notice of Motion application dated 2/9/2019 and filed on 3/9/2019 seeks interim conservatory orders restraining the Respondents from implementing the Letter dated 28/8/19 terminating the appointments of Samuel Onyango Okello and Obwere Kennedy Akoko as members of the Kisumu City Board.
2. Interim orders pending the hearing and determination of this application interpartes were granted by Wasilwa J. at Nairobi and orders issued accordingly on 3rd September, 2019.
3. The application is on the grounds that the intended termination was arbitrary and the Respondents did not afford the Petitioners an opportunity to be heard over the said termination.
4. That the right to equal protection of the law under Article 37 and the right to fair labour practice as enshrined under Article 41 of the Constitution were violated. In any event the right to fair administrative action guaranteed under Article 47 and that to a fair hearing guaranteed under Article 50 of the Constitution were equally violated by the Respondents.
5. The application is opposed vide a Replying affidavit of 1st and 2nd Respondents in which they responded to both the Petition itself and the application dated 2nd September, 2019.
6. The Respondents state that the intended termination was occasioned by an Amendment to the Urban Areas and Cities Act, 2011 on 28th march 2019, under the Urban Areas and Cities (Amendment) Act, 2019 in which Section 13 of the Act was amended so as to provide for minimum qualifications of members of the board.
7. That the Petitioners who had earlier been appointed under Section 13 of the Act, now do not meet the criteria for appointment as member of the Board, hence the intended termination and replacement.
8. The court has considered the competing arguments in this matter and taking into consideration the requirements for grant of interim conservatory orders set out in the case of Giella –vs- Casman Brown & Co. Limited and in the Supreme Court decision in the Gitirau Munyacase, the court is satisfied that the Petitioners/Applicants have established a prima facie case, worthy of consideration on the merits in the hearing and determination of the Petition itself.
9. It is therefore in the interest of justice and fair play that the conservatory orders already granted by Wasilwa J. be extended pending the hearing and determination of the Petition.
10. The application is therefore meritorious and is granted. Parties to take directions on the hearing and determination of the Petition on the date of delivery of this Ruling.
Ruling Dated, Signed and delivered this 11th day of December, 2019
Mathews N. Nduma
Judge
Appearances
Mr. Muga Apondi, Advocate for the Petitioners, Applicants
Mr. Omondi for the Respondents
Chrispo – Court Clerk