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ELRCDismissedPetition (as per record; referenced proceedings in High Court at Kisii Petition No. 5 of 2018)· [2019] KEELRC 995 (KLR)

Peter Jim Momanyi &another; v CEC Members of Water Kisii County Government & 8 others; Caleb Gichana & another (Interested Parties) [2019] KEELRC 995 (KLR)

Employment and Labour Relations Court
30 July 2019
2,750 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a challenge to director appointments at Gusii Water because neither side produced reliable minutes, so the appointments stand.

What this practically means

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Executive summary

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Two petitioners, residents of Kisii County, challenged the recruitment and appointment of the 8th and 9th respondents as Directors of Gusii Water and Sanitation Services Company Limited, alleging that although they emerged as the best candidates in a competitive process conducted by a select interviewing panel pursuant to orders of Majanja J. in High Court Petition No. 5 of 2018, the 4th respondent fraudulently substituted their names at a Special General Meeting held on 6th September 2018. They sought a declaration that the appointments were unlawful and an order of certiorari to quash them. The court framed three issues: jurisdiction, proof on a balance of probabilities, and reliefs. On jurisdiction, it held the dispute fell under Article 162(2) of the Constitution as read with Section 12 of the Employment and Labour Relations Court Act and dismissed the preliminary objection. On the merits, the court found both sets of minutes unreliable: the petitioners' minutes were not fully executed and lacked the company seal, while the 8th respondent's minutes contained contradictions, including signatures by the Managing Director who was not a panelist. The 4th respondent also failed to produce authentic company records. Holding the petitioners to the burden of proof under Sections 107 and 108 of the Evidence Act, the court found no tangible evidence warranting revocation of the appointments and dismissed the petition. Noting the respondents' conduct, especially the failure to provide authentic records, the court ordered each party to bear their own costs.

Key legal issues

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01

Jurisdiction of the Employment and Labour Relations Court over the recruitment dispute

Holding

The court has jurisdiction; the preliminary objection is dismissed.

Reasoning

The dispute concerned appointment to the position of Director following a competitive recruitment process mandated by Majanja J. It was a process distinct from the normal election of directors under the Companies Act, falling within the Employment and Labour Relations Court Act, which derives jurisdiction from Article 162(2) of the Constitution as read with Section 12 of that Act, per the authorities cited.

p. 4
02

Whether the petitioners proved their case on a balance of probabilities

Holding

They did not; the minutes relied on by both sides were unreliable and the appointments of the 8th and 9th respondents stand.

Reasoning

The petitioners' minutes were not fully executed by the select committee and bore no company seal; the 8th respondent's minutes contained contradictions, including signatures by persons who were not panelists. The company secretary failed to produce authentic signed and sealed company records. With both records unreliable and the burden on the petitioners, the court found no tangible evidence warranting revocation of the appointments.

p. 5

Legal principles established

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  • A party bearing the burden of proof must prove its case on a balance of probabilities, and where documents relied upon are unreliable the court cannot make findings on them.
  • Disputes concerning recruitment and appointment of directors following a competitive recruitment process fall within the jurisdiction of the Employment and Labour Relations Court.

Court orders

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  1. 1.The preliminary objection on jurisdiction is dismissed.
  2. 2.The petition fails on the merits and the reliefs sought are not granted.
  3. 3.Each party to bear their own costs of the petition.
Jurisdiction invoked
Article 162(2) of the Constitution of Kenya 2010 as read with Section 12 of the Employment and Labour Relations Court Act, Cap 234B Laws of Kenya

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, "Peter Jim Momanyi &another; v CEC Members of Water Kisii County Government & 8 others; Caleb Gichana & another (Interested Parties) [2019] KEELRC 995 (KLR)", Case Analysis (2019). Petition (as per record; referenced proceedings in High Court at Kisii Petition No. 5 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/995/eng@2019-07-30

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