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ELRCDismissed(not stated in judgment)· [2017] KEELRC 1695 (KLR)

Joseph Matuu Mutinda v Government of Makueni County & another [2017] KEELRC 1695 (KLR)

Employment and Labour Relations Court
3 March 2017
ANAbuodha J. N.
2,047 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to reinstate a sacked county officer pending trial, ruling that interim reinstatement is reserved for exceptional cases only.

What this practically means

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Executive summary

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This is a ruling on a notice of motion dated 25th January, 2016 in which a former Chief Officer in the Makueni County Department of Lands, Urban Planning and Environment Management sought a temporary injunction restraining his termination, a mandatory injunction against dismissal without due process, and interlocutory reinstatement with full salary and benefits pending the hearing of his substantive claim. He was dismissed on 22nd December, 2015 following deliberations of an Interdepartmental Advisory Committee, having been suspended for over a year. He contended that under sections 45(2) and 59(1)(c) of the County Government Act only the County Public Service Board could terminate his services, and that he was never given a chance to face his accusers or cross-examine them, relying on Giella Vs Cassman Brown. The respondents, through Joshua Wambua, justified the dismissal on grounds of gross misconduct including falsified imprest claims, irregular collection of imprest issued to other officers, falsified allowance returns, soliciting monies from clients, and over Kshs 1,045,620 in unsurrendered imprests, and relied on Article 179(4) of the Constitution and section 30(3) of the County Government Act, submitting that the Governor as Chief Executive could terminate the claimant, and citing Geoffrey Mworia on judicial restraint in human resource functions. Abuodha J. N. held that interlocutory reinstatement is a mandatory injunction to be granted sparingly and in exceptional cases; the respondent had shown prima facie reasonable grounds for dismissal, and the contested questions of process and authority were for full trial. The application was dismissed, with liberty to seek the remedies after full trial on merits. Costs were not addressed. The judgment is dated and was delivered at Nairobi on 3rd March, 2017.

Key legal issues

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01

Prima facie case and adequacy of damages for interlocutory injunction

Holding

The respondent demonstrated prima facie reasonable grounds for dismissal; the applicant's contest of process and authority are matters for full trial; injunction not appropriate

Reasoning

The court applied the Giella v Cassman Brown principles to an employment dispute, noting the applicant was accused of financial impropriety and did not strongly contest the accusations, only the process followed and the Governor's power to terminate. These contested issues require full trial where the court may order reinstatement if the claimant succeeds. Interim orders were therefore refused.

p. 4
02

Interlocutory reinstatement

Holding

Reinstatement pending trial is an interlocutory mandatory injunction, granted sparingly and only in exceptional cases; this was not such a case

Reasoning

The court characterised the relief sought as equivalent to a mandatory injunction interdicting the employer's decision to separate from the employment contract. Given the pending contest over the fairness of the dismissal process and the authority of the Governor, the court held that the full trial, not the interlocutory stage, was the proper forum to determine these matters.

p. 4

Legal principles established

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  • An order for interlocutory reinstatement is akin to an interlocutory mandatory injunction and should be granted sparingly and in exceptional cases
  • The court will sparingly interfere in the employer's entitlement to perform human resource functions such as disciplinary control (as relied on by the respondent, citing Geoffrey Mworia)

Court orders

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  1. 1.The notice of motion dated 25th January, 2016 is dismissed
  2. 2.Direction that the remedies sought by the applicant can be granted after full trial on merits

Authorities

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Legislation

  • County Government ActSection 45(2)
  • County Government ActSection 30(3)
  • County Government ActSection 59(1)(a)-(c)
  • Constitution of Kenya, 2010Article 179(4)
  • Ethics and Economic Crimes Act(not specified)

Cases cited (3)

  • Monica Cyombua Gitari & another Vs Embu County Government
    [2015] eKLR
  • Giella Vs Cassman Brown
  • Geoffrey Mworia Vs Water Resources Management Authority & 2 Others
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment dispute (notice of motion under civil procedure and employment law; interlocutory application)

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, "Joseph Matuu Mutinda v Government of Makueni County & another [2017] KEELRC 1695 (KLR)", Case Analysis (2017). (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1695/eng@2017-03-03

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