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ELRCPartially AllowedNotice of Motion dated 31st December 2014 (Industrial Court)· [2015] KEELRC 705 (KLR)

Patrick Lumumba v Board of Management Kiambu Institute of Science & Technology & another [2015] KEELRC 705 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
31 July 2015
NMNzioki wa Makau
2,573 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, a teacher, moved the Industrial Court by Notice of Motion dated 31st December 2014 seeking a temporary stay of his interdiction and disclosure of minutes of disciplinary meetings of 20th November and 15th December 2014. He alleged he was never told the nature of the allegations, that no investigations were conducted, and that his accuser sat on the Board that interdicted him. The Interested Party (Teachers Service Commission), through a Replying Affidavit of Mary Rotich, deposed that the Claimant faced allegations of unprofessional conduct and negligence, was informed of the allegations, replied in writing, appeared before the Board, and was interdicted by the full Board to pave way for a disciplinary hearing; the Respondent filed nothing. The application was canvassed by documents under Rule 21. The Interested Party framed the issue as whether the Claimant met the interlocutory relief threshold, relying on Giella v Cassman Brown and supporting authority. The Court applied the Giella test and the three-dimension criteria for valid interdictions laid down by Mbaru J in Frederick Saundu Amolo: a justifiable belief in serious misconduct, objectively justifiable denial of workplace access, and an opportunity to be heard. The Court faulted the interdiction on one ground only - there was no evidence the Claimant was accorded the opportunity to defend himself as directed on 23rd November 2014. Finding there was basis to summon him before the Board, the Court annulled the disciplinary process before the Interested Party, directed the Claimant to appear before the Respondent, and ordered the Board to sit and deliberate within one month failing which the suspension would be lifted in toto. The application succeeded in part with no order as to costs.

Key legal issues

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01

Validity of the interdiction of the Claimant

Holding

The interdiction was faulted on one ground - no evidence that the Claimant was accorded the opportunity to defend himself; the disciplinary process before the Interested Party was annulled

Reasoning

The Court adopted the three-dimension criteria from Amolo v Principal Namanga Mixed Day Secondary School: justifiable reason to believe misconduct, objectively justifiable denial of workplace access, and an opportunity to be heard. The Claimant responded to allegations in writing but there was no evidence he was permitted to defend himself as directed on 23rd November 2014. The Court found there was basis to summon him before the Board, so rather than lifting the interdiction outright it annulled the process and directed a fresh hearing.

p. 4
02

Test for interlocutory injunction

Holding

The Giella v Cassman Brown threefold test applies - prima facie case with probability of success, irreparable injury not compensable by damages, and balance of convenience

Reasoning

The Court restated the principles from Giella v Cassman Brown as approved in E.A Industries v Trufoods by Spry V-P, and the Interested Party relied on Supreme Court authority on interlocutory relief. The Court assessed the interdiction against these principles together with the three-dimension criteria for interdictions, finding the process defective on the hearing limb.

p. 3

Legal principles established

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  • An interdiction is valid only if based on fair reasons and implemented pursuant to fair procedure - a three-dimension criteria of justifiable reason, objectively justifiable denial of workplace access, and an opportunity to be heard
  • Failure to accord the employee an opportunity to defend himself renders the interdiction unfair and amenable to reversal

Court orders

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  1. 1.The disciplinary process before the Interested Party is annulled
  2. 2.The Claimant to be accorded a chance to appear before the Respondent as directed by the Respondent on 23rd November 2014
  3. 3.The Board is to sit and deliberate on the matter within one month of the order of the Court, failing which the suspension of the Claimant will be lifted in toto
  4. 4.The application succeeds in part and there will be no order as to costs; parties at liberty to apply

Authorities

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Legislation

  • Teachers Service Commission Actdisciplinary mandate
  • TSC Code of Regulationsdisciplinary grounds
  • Industrial Court (Procedure) Rules 2010Rule 21

Cases cited (10)

  • Frederick Saundu Amolo v Principal Namanga Mixed Day Secondary School & 2 Others
    [2014] eKLR
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others
    Supreme Court No. 2 of 2014 (unreported)
  • Gladys Boss Shollei v Judicial Service Commission
    [2013] eKLR
  • Mary Liviza & Okoth Mondo v Attorney General of Kenya and Secretary General of EAC
    Application No. 3 of 2010 EALS Law Digest 2005-2011
  • Sergeant v Paul
    (1949) 16 E.A.C.A 63
  • Noor Mohamed Hanmohamed v Kassamali Virji Madhani
    (1953) 20 E.A.C.A 8
  • Garden Cottage Food Limited v Milk Marketing Board
    [1984] AC 130
  • Giella v Cassman Brown & Co. Ltd
    (1973) EA 358
  • E.A Industries v Trufoods
    (1972) EA 420
  • Elizabeth Washeke et al v Airtel Network Ltd et al
    IC 1972 of 2012
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Industrial Court (Procedure) Rules 2010 (Rule 21); dispute over teacher discipline under the Teachers Service Commission Act and TSC Code of Regulations

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, "Patrick Lumumba v Board of Management Kiambu Institute of Science & Technology & another [2015] KEELRC 705 (KLR)", Case Analysis (2015). Notice of Motion dated 31st December 2014 (Industrial Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/705/eng@2015-07-31

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