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ELRCDismissedNotice of Motion dated 6th May 2014 (memorandum of claim filed simultaneously)· [2014] KEELRC 340 (KLR)

Geoffrey Macharia Wairimu v Private Safaris (EA) Limited [2014] KEELRC 340 (KLR)

Industrial Court (Employment and Labour Relations Court)
25 July 2014
MNMATHEWS N. NDUMA
676 words in judgment
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The bottom line

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Kenya's Employment Court refused to stop an employer's disciplinary process, ruling interim orders should not prejudge how discipline plays out.

What this practically means

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Executive summary

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The Claimant, Geoffrey Macharia Wairimu, Chief Accountant of the Respondent, moved the Industrial Court by notice of motion dated 6th May 2014 seeking a temporary injunction restraining the Respondent from terminating his employment, initiating or continuing disciplinary action, or stopping his salaries and allowances pending hearing of his claim, in which he sought a permanent injunction and a declaration that the disciplinary process was unlawful, arbitrary and void. The Respondent opposed, deposing that between October 2012 and February 2014, 81 payments totalling Kshs.104,660,512 were instructed to Citibank Kenya in favour of Little Farm Produce, a firm with which it had no business relationship; the Claimant authorised 19 and released 18 of these instructions, and a business names search showed him as the sole proprietor of Little Farm Produce. The Claimant was sent on compulsory leave on 3rd March 2014, did not attend a disciplinary hearing scheduled for 2nd May 2014 under Section 41(1) of the Employment Act, and was meanwhile charged in Criminal Case No. 330/14 before the Chief Magistrate's Court at Nairobi. The court endorsed Rika J's reasoning in Dennis Nyagaka Ratemo v Re Kenya Film Commission that provisional measures should not prejudge the propriety of an employer's disciplinary process, as this would infringe the employer's right to administer the employment contract and manage its business. The application was dismissed with costs in the cause. Judgment delivered at Nairobi on 25th July 2014 by Mathews N. Nduma, Principal Judge.

Key legal issues

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01

Whether an interlocutory injunction may issue to restrain an employer's disciplinary process pending determination of the claim

Holding

No - the application for a temporary injunction restraining the disciplinary process was dismissed, the court endorsing Rika J's reasoning that such provisional measures would prejudge the propriety of the employer's disciplinary process and unduly infringe the employer's management rights.

Reasoning

The court adopted the reasoning in Dennis Nyagaka Ratemo v Re Kenya Film Commission that granting such orders would deprive the employer of the right to administer the contract of employment and severely infringe its right to manage its business on the basis of prima facie facts. The Respondent had raised genuine, documented concerns (payments of over Kshs.104 million to a firm owned by the Claimant), and the Claimant did not attend the Section 41(1) disciplinary hearing. Interim orders could not properly pre-empt the disciplinary outcome.

p. 2

Legal principles established

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  • The Industrial Court consistently declines to issue provisional measures that have the effect of prejudging the propriety of an employer's disciplinary process and decision, as this would infringe the employer's right to administer the contract of employment and manage its business.

Court orders

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  1. 1.The Application is dismissed
  2. 2.Costs be in the cause

Authorities

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Legislation

  • Employment ActSection 41(1)

Cases cited (1)

  • Dennis Nyagaka Ratemo Vs. Re Kenya Film Commission and Another
    Cause No. 2192 of 2012
Jurisdiction invoked
Employment and labour relations jurisdiction of the Industrial Court; application brought pending hearing and determination of the claim under the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Geoffrey Macharia Wairimu v Private Safaris (EA) Limited [2014] KEELRC 340 (KLR)", Case Analysis (2014). Notice of Motion dated 6th May 2014 (memorandum of claim filed simultaneously). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/340/eng@2014-07-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.