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ELRCPartially AllowedPetition (Notice of Motion dated 28th July 2014)· [2014] KEELRC 1296 (KLR)

Henry Morara Ongwenyi v Ethics And Anti-Corruption Commission & 8 others [2014] KEELRC 1296 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
30 September 2014
4,537 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Employment Court refused to reinstate a dismissed EACC employee at an interim stage but ordered the employer to disclose all investigation materials.

What this practically means

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Executive summary

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The Petitioner, Henry Morara Ongwenyi, an Education Officer I employed by the Ethics and Anti-Corruption Commission since 2006, was summarily dismissed on 25th July 2014 after CID investigations allegedly established that he sent two anonymous emails critical of the Commission. Three days later he filed a Notice of Motion seeking suspension of the dismissal, an injunction restraining the Respondents from filling the position of Deputy Director, Regional Office (for which he had been interviewed) and his own position, and orders compelling disclosure of all materials obtained under a search warrant and all investigation documents. Justice Maureen Onyango declined the injunction, holding that the Petitioner had not been appointed to the position and so had no right capable of protection, and that the court should not interfere with employers' internal operations; nor would the other interviewed candidates be enjoined, their rights not having crystallized. The prayer for suspension of the dismissal - effectively interim reinstatement - was also declined, the court following Justice Rika's holding that reinstatement is a substantive remedy to be granted only after a full hearing, particularly where the Petitioner has claimed reinstatement and damages as alternative remedies. However, invoking Articles 35, 47, 48 and 50 of the Constitution, the court ordered the 1st to 6th Respondents to furnish the Petitioner with all materials seized under the search warrant, all investigation documents and evidence establishing he sent the emails, and all call logs from his phone numbers. The petition was directed to be heard on a priority basis, with costs in the cause.

Key legal issues

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01

Whether interim reinstatement / suspension of dismissal can be granted pending hearing of the petition

Holding

Declined. Reinstatement under section 49(3) of the Employment Act presupposes a full hearing and a finding of unfairness; interim reinstatement would have the court take over management prerogative.

Reasoning

The court adopted Justice Rika's reasoning in Joab Mehta Oudia v Coffee Development Board and Alfred Nyungu Kimungi v Bomas of Kenya that reinstatement is a substantive remedy to be granted after full hearing, and that the court cannot stay a termination decision or interfere with management discretion. The Petitioner had also claimed damages as an alternative remedy, so which remedy applies can only be determined after a full hearing.

p. 7
02

Whether the Petitioner was entitled to an injunction restraining the filling of the Deputy Director and Education Officer I positions

Holding

Declined. The Petitioner had no right capable of protection since none of the 8 successful candidates had been appointed; damages could not be shown to be inadequate.

Reasoning

Applying Giella v Cassman Brown, the applicant must show a prima facie case with a right capable of protection. The interview results had not been released, so no candidate's right had crystallized. The court also declined to enjoin the other candidates, holding their rights were not justiciable until appointments were made and accepted. The court further would not halt an employer's recruitment of all 8 positions for one candidate's benefit.

p. 6
03

Whether the Respondents should disclose investigation materials and items seized under the search warrant

Holding

Granted. Under Articles 35, 47, 48 and 50 of the Constitution the Petitioner has rights to information, fair administrative action, access to justice and fair hearing, which he cannot exercise without the information sought.

Reasoning

The court found the Petitioner requires the information to effectively prosecute his petition. Some information had been supplied in the pleadings but not all. The court therefore ordered disclosure of all materials obtained under the search warrant, the investigation documents establishing the Petitioner was the sender of the emails, and call logs from his phone numbers.

p. 5
04

Whether the other interviewed candidates needed to be enjoined before the injunction could issue

Holding

The court disagreed with the Respondents' joinder argument but declined the injunction anyway on the ground that no candidate's rights had crystallized.

Reasoning

The court held that none of the 8 candidates had been appointed, so their rights to appointment had not crystallized and would only be justiciable after appointment and acceptance, or on a claim of discrimination under section 5(3) of the Employment Act. Neither the Petitioner nor the other candidates had a right capable of being infringed at the interlocutory stage.

p. 6

Legal principles established

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  • An employee cannot claim preservation of a position to which he has not been appointed; the rights of interviewed candidates have not crystallized until appointment and acceptance.
  • The court should not interfere with the internal operations and management of employers by stopping an employer from filling vacant positions.
  • Reinstatement is ordinarily a substantive remedy granted after a full hearing, not on interlocutory application, and presupposes a determination that the dismissal was unfair after both parties are heard.

Court orders

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  1. 1.Prayers 2 and 3 of the Notice of Motion dated 28th July 2014 (suspension of summary dismissal and injunction against filling the positions) declined
  2. 2.The 1st, 2nd, 3rd, 4th, 5th and 6th Respondents ordered to furnish the Petitioner with all materials, things or substances obtained pursuant to the warrant of search; all documents, minutes, investigation reports, materials, logs and evidence establishing that the Petitioner was the sender of the two email addresses (kiliohaki@yahoo.com and hongombali@yahoo.com); and all call logs and other information obtained from his mobile phone numbers 0722631973 and 0739200566
  3. 3.Petition to be fixed for hearing on priority basis
  4. 4.Costs in the cause

Authorities

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Legislation

  • Constitution of KenyaArticles 35, 47, 48, 50, 47(2), 50(1)
  • Employment Actsections 41, 44 (including sub-sections 3 and 4), 49(3), 49(4), 5(3)
  • Industrial Court Actpowers to give interim preservation orders including injunctions
  • Kenya Information and Communications Actsection 83U
  • Penal Codesection 225
  • Ethics and Anti-Corruption Commission Actsection 11(6)(d)
  • Criminal Procedure Codereturn on warrant of search

Cases cited (9)

  • Gladys Boss Shollei vs. Judicial Service Commission
    (2014) eKLR
  • Giella vs. Casman Brown
  • Muslims for Human Rights (Muhuri) and 2 others vs. Attorney General & 2 others
    {2011} eKLR
  • Martin Nyaga Wambora vs. Speaker County Assembly of Embu
    (2014) eKLR
  • Alfred Nyungu Kimungi vs. Bomas of Kenya
    (2013) eKLR
  • Joab Mehta Oudia vs. Coffee Development Board of Trustee
    (2014) eKLR
  • Alfred Nyungu Komungui vs. The Bomas of Kenya (Industrial Court Cause Number 620 of 2013)
  • Professor Gitile Naitule vs. University Council Multimedia University College (Industrial Court Cause Number 1200 of 2012)
  • Centre for Rights Education & Awareness (CREAW) & 7 others v. Attorney General
    Petition No. 16 of 2011 (NBI)
Jurisdiction invoked
Industrial Court Act - powers to give interim preservation orders including injunctions in cases of urgency, and to order reinstatement; Employment Act sections 41, 44, 49(3), 49(4)

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, "Henry Morara Ongwenyi v Ethics And Anti-Corruption Commission & 8 others [2014] KEELRC 1296 (KLR)", Case Analysis (2014). Petition (Notice of Motion dated 28th July 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1296/eng@2014-09-30

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