[2017] KEELRC 1299 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

CAUSE NO 2543 OF 2016

VINCENT MOKUA OIGO..........................................................................CLAIMANT

VERSUS

WAKENYA PAMOJA SACCO SOCIETY LIMITED...................1ST RESPONDENT

SACCO SOCIETIES REGULATORY AUTHORITY....................2ND RESPONDENT

RULING

1. The Claimant’s application brought by Notice of Motion under certificate of urgency dated 8th December 2016 seeks the following orders:

a) An order restraining the 1st Respondent from filling the position of Chief Executive Officer previously held by the Claimant;

b) An order quashing the 2nd Respondent’s letter dated 25th October 2016, suspending the Claimant from being an officer of a Sacco Society in Kenya for a period of 3 years.

2. The application which is supported by the Claimant’s affidavit sworn on 8th December 2016 is based on the following grounds:

a) The Claimant worked as the Chief Executive Officer of the 1st respondent until 25th October 2016 when he was unlawfully removed from office by the 2nd Respondent;

b) The 1st Respondent illegally and unlawfully acting on the instructions of the 2nd Respondent terminated the Claimant’s employment on 27th October 2016;

c) The 2nd Respondent had no power to terminate the services of the Claimant who was employed by the 1st Respondent;

d) The 1st Respondent had advertised a vacancy in the Claimant’s position of Chief Executive Officer and was in the process of recruiting a substantive Chief Executive Officer ignoring the Claimant’s appeal to the Cabinet Secretary, Ministry of Co-operatives;

e) The Claimant will suffer irreparable loss and damage if the orders sought are not granted.

3. The 1st Respondent’s response is contained in a replying affidavit sworn by its acting Chief Executive Officer, Isabella Masinde on 30th January 2017.

Masinde depones that the 1st Respondent was issued with a directive by the 2nd Respondent dated 5th August 2016 to suspend the Claimant pending the hearing and determination of allegations of misconduct leveled against him. The said directive was served upon the Claimant and the 1st Respondent’s Board on the same day and the Claimant was suspended.

4. Upon consideration of the Claimant’s response to the allegations leveled against him dated 16th August 2016, the 2nd Respondent reached the conclusion that no sufficient cause had been given as to why supervisory enforcement action ought not to be taken against the Claimant. The 2nd Respondent therefore directed the 1st Respondent to remove the Claimant from its service as an officer. The removal directive dated 25th October 2016, together with the findings and determination by the 2nd Respondent were served upon the Claimant on 26th October 2016.

5. The 1st Respondent implemented the removal directive by its letter dated 27th October 2016 terminating the Claimant’s services.

6. In a replying affidavit sworn by the 2nd Respondent’s acting Chief Executive Officer, John M. Mwaka on 17th January 2017, he depones that in the course of exercising its supervisory and regulatory mandate over the 1st Respondent in accordance with Sections 49, 50 and 51 of the Sacco Societies Act, the 2nd Respondent received complaints on the conduct of the 1st Respondent’s business and activities.

7. The 2nd Respondent, in exercise of its powers under Section 51 of the Sacco Societies Act as read together with Regulations 66, 67 and 68 of the Regulations, 2010 undertook supervisory enforcement actions against the 1st Respondent and several of its officers including four (4) Directors and the Claimant who was the Chief Executive Officer.

8. The said Directors and the Claimant were thereby suspended from office. The Claimant was required to respond to the allegations of misconduct leveled against him within thirty (30) days. He was also given notice of the 2nd Respondent’s intention to issue supervisory enforcement action directing his removal and prohibition from serving as an officer of a Sacco Society.

9. The Claimant responded to the allegations leveled against him by his letter dated 16th August 2016 and having considered the specific responses to the allegations, the 2nd Respondent determined that the Claimant had not shown sufficient cause why supervisory enforcement action should not be taken against him. The 2nd Respondent therefore directed the 1st Respondent to remove the Claimant from its service. The 1st Respondent complied with this directive by terminating the Claimant’s employment. The 2nd Respondent also barred the Claimant from the service of any Sacco Society for a period of three (3) years.

10. In response to the replying affidavits sworn on behalf of the 1st and 2nd Respondents, the Claimant swore a supplementary affidavit on 24th February 2017. In this affidavit, the Claimant takes issue with the two replying affidavits which have similar averments. He alleges that the 2nd Respondent was pressured by anonymous memos leading to the unfounded opinion that the 1st Respondent’s business and activities were not conducted in accordance with the law. The Claimant adds that the said memos began doing the rounds after he had suspended three senior managers.

11. The Claimant further depones that he was not accorded a fair hearing in that the 1st Respondent, who was his employer did not participate in the deliberations leading to his removal from office. He also states that the decision to remove him from office was made in haste and that his response was not considered.

12. The 2nd Respondent’s Senior Compliance Officer, Anthony I. Mkabane also swore an affidavit on 24th March 2017 deponing that the Claimant was suspended from office on 5th August 2016 pursuant to statutory directives issued by the 2nd Respondent as part of its supervisory and regulatory mandate over the 1st Respondent.

13. The Claimant’s prayers in this application are in the nature of mandatory and prohibitive injunctive orders. The conditions for granting of such orders were well stated in the famous case of Giella v Cassman Brown & Company Limited[1973] EAas follows:

a) An applicant must show a prima facie case with a probability of success;

b) An interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages;

c) If the Court is in doubt, it will decide the application on the balance of convenience.

14. The question before the Court is whether the Claimant’s application satisfies the conditions set out in Giella v Cassman Brown (supra). From the various affidavits filed by the parties, it would appear that the circumstances and legality of the 2nd Respondent’s letter suspending the Claimant from being an officer of a Sacco Society in Kenya for a period of 3 years are issues in contest. In my view, a fair determination of these issues can only be achieved pursuant to calling of evidence in a full trial. The order sought which is final in nature cannot therefore be granted at the interlocutory stage.

15. Regarding, the prayer for an order barring the filling of the position previously held by the Claimant, I am persuaded by the holding in Tom

Otieno Odongo v Cabinet Secretary Ministry of Labour Social Security & Services & National Social Security Fund Board of Trustees (Cause No 1174 of 2013)andGladys Boss Shollei v Judicial Service Commission [2013] eKLRthat the court should not bar institutions from running as litigation with their employees progresses.

16. For the foregoing reasons, the Claimant’s application dated 8th December 2016 is declined. The costs of the application will be in the cause.

17. The interim orders granted on 9th December 2016 are vacated.

18. Orders accordingly.

DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 31ST DAY OF MAY 2017

LINNET NDOLO

JUDGE

Appearance:

Mr. Nyabena for the Claimant

Miss Mutinda for the 1st Respondent

Miss Adionye for the 2nd Respondent