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ELRCDismissedNot stated in judgment (Notice of Motion dated 19th June 2018)· [2018] KEELRC 712 (KLR)

Patrick Koome Mutiga & 22 others v Meru County Government & another [2018] KEELRC 712 (KLR)

Employment and Labour Relations Court
4 October 2018
NMNzioki wa Makau
1,529 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 refused to freeze county recruitment where jobseekers delayed nine months and any loss could be repaid with money.

What this practically means

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Executive summary

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The Claimants, recruited by the 2nd Respondent (County Public Service Board, Meru) into positions in the department of health of the 1st Respondent (County Government of Meru) pursuant to appointment letters dated 26th July 2017, moved the court by Notice of Motion dated 19th June 2018 seeking interim injunctions to preserve their positions and to bar the Respondents from recruiting new officers into those positions pending determination of their claim. They asserted they reported for deployment on 1st September 2017 but were told by a chief officer of health to wait, having resigned previous positions, and that refusal to deploy them breached Article 41 of the Constitution. The Respondents opposed, contending the appointments were made contrary to a cabinet directive of 22nd May 2017 freezing recruitment, were null and void ab initio, that the Claimants were guilty of forum shopping and material non-disclosure, that their salaries were never budgeted for, and that granting the orders would determine the suit at the interlocutory stage. Applying the Giella v Cassman Brown principles, the court found a triable issue on the appointments (satisfying the prima facie limb) but held the alleged harm was compensable in damages, noting the Claimants waited some nine months from 1st September 2017 before filing. The balance of convenience favoured the Respondents, whose health service mandate could grind to a halt if recruitment was frozen. The application was dismissed with no order as to costs, and directions on the suit were reserved for the next session at Meru.

Key legal issues

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01

Whether the Claimants established a prima facie case

Holding

The documentation revealed an internal memo suggesting the cabinet froze appointments on 22nd May 2017, raising an issue to be resolved that satisfied the first ground

Reasoning

The court noted the clash between the letters of offer exhibited by the Claimants and the internal memo indicating a cabinet freeze on appointments made on 22nd May 2017. That conflict meant there was a triable issue, satisfying the prima facie threshold, though it did not guarantee success at trial.

p. 3
02

Irreparable harm

Holding

The damage was not irreparable as it could be compensated by an award of damages

Reasoning

The contracts were to be performed effective September 2017. On the material before the court, any loss flowing from non-deployment was capable of being compensated in damages, so the second limb of the injunctive test failed. The Claimants' nine-month delay in coming to court reinforced this conclusion.

p. 3
03

Balance of convenience

Holding

The balance tilted in favour of the Respondents, whose provision of health services could grind to a halt if recruitment was frozen

Reasoning

The court held that freezing recruitment pending trial would hamper the 1st Respondent's mandate of providing health services. The Claimants' delay of about nine months in filing the application weighed against them, as they could equally wait for the suit's determination.

p. 3

Legal principles established

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  • An applicant for a temporary injunction must show a prima facie case with probability of success, irreparable injury not compensable by damages, and failing which the balance of convenience (Giella v Cassman Brown test)
  • Courts should not strangle management by interfering with the exercise of managerial prerogatives except in exceptional circumstances

Court orders

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  1. 1.The Notice of Motion dated 19th June 2018 is dismissed as the threshold for the grant of the injunctive remedy is not met
  2. 2.No order as to costs
  3. 3.Directions on the disposal of the suit to be given at the next session at Meru

Authorities

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Legislation

  • Employment and Labour Relations Court ActSections 3, 12(3)
  • Constitution of KenyaArticle 41(1) and (2)

Cases cited (6)

  • Wells Fargo Ltd v Cyrus Kioko & 48 Others
    [2015] eKLR
  • Rajab Barasa & 4 Others v Kenya Meat Commission
    [2016] eKLR
  • Alfred Nyungu Kimungui v Bomas of Kenya
    [2013] eKLR
  • Benedict Abonyo Omollo v Judicial Service Commission
    [2015] eKLR
  • East African Industries v Trufoods
    [1972] EA 420
  • Giella v Cassman Brown
    [1973] EA 358
Jurisdiction invoked
Section 3, 12(3) of the Employment and Labour Relations Court Act, Article 41 of the Constitution of Kenya and all other enabling provisions of the law

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 Koome Mutiga & 22 others v Meru County Government & another [2018] KEELRC 712 (KLR)", Case Analysis (2018). Not stated in judgment (Notice of Motion dated 19th June 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/712/eng@2018-10-04

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