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ELRCDismissedNot stated in the judgment extract (Cause before the Employment and Labour Relations Court, Nakuru)· [2014] KEELRC 1470 (KLR)

Daniel Waithaka Mwangi v Nelson Ngaruiya Njoroge [2014] KEELRC 1470 (KLR)

Employment and Labour Relations Court
11 December 2014
RSRadido Stephen
1,100 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a county governor's injunction because his affidavit hid key facts and failed to disclose its information sources.

What this practically means

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Executive summary

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The applicant, Governor of Nyandarua County, moved the Employment and Labour Relations Court at Nakuru by motion dated 10 November 2014 seeking injunctions to restrain the respondent, a former County Executive Committee member whom he had reshuffled and removed, from mobilising the public to disrupt service delivery at the County Headquarters and from forcefully entering the former CEC offices pending inter partes hearing. The respondent filed a notice of preliminary objection and replying affidavit, contending the motion was incompetent because of pending proceedings in Nakuru High Court Petition No. 59 of 2014, in which injunctive relief restraining the applicant from interfering with his employment had been granted; that the applicant had withdrawn a removal letter and reinstated him to forestall contempt proceedings; that the allegations of intended disruption were unsubstantiated; and that the Giella v Cassman Brown principles for injunctions were not met. He further noted the County Government of Nyandarua, his actual employer, was not a party. The court held that the applicant's affidavit relied on 'verifiable information' from security agencies without disclosing its source, failing the evidentiary standard; that the applicant concealed the material facts of the pending petition and injunctive orders; and that the organ of state mandated with law and order, not the court, should have been the first port of call for an alleged security risk. The court dismissed the motion with costs to the respondent as an abuse of court process, directed the respondent to file his response and documents by 18 December 2014, and set the cause for mention on 15 January 2015 for further directions.

Key legal issues

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01

Evidentiary sufficiency of affidavits based on information from undisclosed sources

Holding

The applicant's deposition citing 'verifiable information from the security of Nyandarua' failed to disclose its source and was insufficient to ground injunctive relief

Reasoning

The court applied the trite principle that affidavits relying on information and belief must disclose sources. The applicant's paragraph 4 alleged public mobilization based on security information without identifying its origin, so the motion could not stand on that basis alone.

p. 2
02

Non-disclosure of material facts (pending High Court petition and injunction)

Holding

The applicant concealed the pendency of Nakuru High Court Petition No. 59 of 2014 and the injunctive orders restraining the respondent's removal, which were material to the motion

Reasoning

The respondent had sued the applicant over his removal from office and obtained injunctive relief. These facts were directly material to the applicant's motion; their concealment independently justified dismissing the application.

p. 2
03

Whether injunctive relief under Giella v Cassman Brown principles was warranted and whether the motion was an abuse of process

Holding

The allegations were unsubstantiated, the security organ of state was never approached, and the motion was an abuse of the court's process; the motion was dismissed with costs

Reasoning

The court found the applicant never reported the alleged security risk to the organ of state charged with maintaining law and order. Combined with the evidentiary and disclosure failures, the motion lacked merit and amounted to an abuse of process.

p. 3

Legal principles established

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  • A deponent who relies on information and belief must disclose the source of that information in the affidavit
  • Failure to disclose material facts, including pending proceedings and injunctive orders between the same parties, is fatal to an ex parte-inclined application
  • Where a security risk is alleged, the organ of state mandated with maintenance of law and order should be the first port of call, not the court

Court orders

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  1. 1.The motion is dismissed with costs to the Respondent
  2. 2.The Respondent is directed to file a Response and documents to be relied on before 18 December 2014
  3. 3.The Cause to be mentioned on 15 January 2015 for further directions

Authorities

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Legislation

  • County Government Actsection 35

Cases cited (1)

  • Giella v Cassman Brown & Bros Ltd
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction in respect of employment disputes; applicant invoked section 35 of the County Government Act regarding appointment of County Executive Committee members

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Daniel Waithaka Mwangi v Nelson Ngaruiya Njoroge [2014] KEELRC 1470 (KLR)", Case Analysis (2014). Not stated in the judgment extract (Cause before the Employment and Labour Relations Court, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1470/eng@2014-12-11

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