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ELRCDismissedCause No 2012 of 2014· [2015] KEELRC 1262 (KLR)

Ezekiel Otiende & 2 others v Principal Secretary, Ministry of Interior and Cordination of National Government & another [2015] KEELRC 1262 (KLR)

Employment and Labour Relations Court
13 March 2015
4,017 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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Three immigration officers formerly attached to the Lunga Lunga border point moved the court by notice of motion dated 12th November 2014 seeking an interlocutory injunction compelling the Principal Secretary, Ministry of Interior, to pay all their benefits including salaries pending determination of their claim challenging dismissal from service with effect from 27th January 2014. The claimants were interdicted after EACC undercover integrity tests in November 2013 alleged they received Kshs.500 for temporary permits without issuing official receipts. They complained that they were interdicted before the respondent obtained the supporting audio/video evidence; that they were not on duty on the material dates as confirmed by their supervisor; that the dismissal letters made no reference to their defences; and that they were denied an opportunity to cross-examine the EACC undercover officers whose recordings the respondent relied on, contrary to natural justice. The respondent maintained the dismissals were for warranted reasons with a fair hearing under section 41 of the Employment Act, the PISCES reports and occurrence books could be manipulated, and that an order for payment of salaries would amount to determining the claim before trial. The court applied the Giella v Cassman Brown principles. It found the allegations serious and raising triable issues, satisfying the prima facie test, but held damages would be an adequate remedy if the claim succeeded given the availability of compensation under the Employment Act and article 23 of the Constitution. It also deprecated the unexplained delay of over three months in filing. The application was dismissed with costs.

Key legal issues

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01

Prima facie case

Holding

The claimants' allegations of breach of due process and denial of opportunity to cross-examine EACC undercover officers raise serious triable issues and pass the prima facie test

Reasoning

The court performed a limited evidentiary analysis appropriate at the interlocutory stage. The claimants' complaints - that interdiction preceded receipt of evidence, that dismissal letters made no reference to their defences, and that they were denied cross-examination of the EACC officers - were serious allegations requiring proof at trial, sufficient to constitute triable issues.

p. 7
02

Adequacy of damages

Holding

Damages would be an adequate remedy if the claimants ultimately succeed, so the injunction failed at the second Giella test

Reasoning

The claimants sought a declaration of nullity, reinstatement or compensation. The court noted its power to order compensation under the Employment Act and article 23 of the Constitution, and applying the trust-and-confidence rationale in Hill v. Parsons held that in this case damages would suffice, defeating the injunction application.

p. 7
03

Delay

Holding

The unexplained inordinate delay of over three months in filing the application disentitled the claimants to the equitable remedy of injunction

Reasoning

The claimants were dismissed with effect from 27th January 2014 and filed the application on 12th November 2014 without explanation. Since injunction is equitable, due diligence was required; the internal appeal process did not excuse the delay nor oust the court's jurisdiction to act earlier.

p. 8

Legal principles established

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  • For an interlocutory injunction the applicant must show a prima facie case with probability of success; failing which, inadequacy of damages, or a balance of convenience
  • An injunction is an equitable remedy granted to a party who exercises due diligence and acts with speed
  • The court's jurisdiction to grant an injunction or conservatory order is not ousted by an internal appeal process
  • Under section 45 of the Employment Act, termination is unfair if the employer fails to prove a valid and fair reason and fair procedure

Court orders

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  1. 1.The interlocutory injunction application dated 12th November 2014 is dismissed with costs

Authorities

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Legislation

  • Employment Actsection 45
  • Employment Act, 2007section 41
  • Constitution of Kenyaarticle 23
  • Constitution of Kenyaarticle 236(b)
  • Public Office Ethics Act, 2003not specified
  • Criminal Procedure Codenot specified

Cases cited (3)

  • Giella v. Cassman Brown
  • American Cynamid v. Ethicon
  • Hill v. Parsons
    (1972) chD 305
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the employment dispute; interlocutory injunction sought under certificate of urgency

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, "Ezekiel Otiende & 2 others v Principal Secretary, Ministry of Interior and Cordination of National Government & another [2015] KEELRC 1262 (KLR)", Case Analysis (2015). Cause No 2012 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1262/eng@2015-03-13

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