Evans Kaiga Inyangala & 2 others v County Government of Vihiga & 2 others [2014] KEELRC 1226 (KLR)

The court had earlier, in its ruling dated 15.7.2014, directed the respondents to amend their pleadings within 7 days to identify the advocate appearing, observing that pleadings drawn by the Legal Department were vague and offended the Advocates Act, which requires the identity of an advocate to be known to prevent unqualified persons filing pleadings. The respondents never complied. Reliance on the omission being a matter of form would mean ignoring the court's directive. The affidavit was therefore struck out, leaving the respondents unopposed on documents, though their submissions were still considered.

The claimants were summoned on 27.3.2014 to appear on 28.3.2014 and given only until 30.3.2014, a Sunday, to present their defence, with the committee's report adopted and terminations effected by 31.3.2014 and letters on 9.4.2014. Section 40(3) of the County Government Act requires the select committee to report within ten days, but the law never intended an investigated member to present a defence in a record two days. The Sunday hearing also defeated Article 196(1)'s requirements of open sittings and public participation. The rushed proceedings smacked of mischief and the unfairness claim was found true.

Reinstatement under s.12(3)(vii) of the Industrial Court Act and the parameters in s.49(4) of the Employment Act is granted only in exceptional circumstances and after considering all circumstances. At an interlocutory stage the court is not seized of all facts, making reinstatement unsafe, a finding consistent with Zakoya Kagombe Nderi v Kenya National Chamber of Commerce Industry. Replacing the claimants would render the suit nugatory, so an injunction against advertising, interviewing and filling the positions issued. Salary payment was refused as damages would suffice.