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ELRCStruck OutPetition No. 145 of 2018· [2020] KEELRC 375 (KLR)

Ernest Moturi Ogwora v National Cereals & Produce Board & another [2020] KEELRC 375 (KLR)

Employment and Labour Relations Court
13 October 2020
HWHellen Wasilwa
3,402 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out both applications because the retirement claim belonged in a fresh petition, not the pending appointment dispute.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court (Hellen Wasilwa, J) dealt with two competing interlocutory applications arising from Petition No. 145 of 2018. The Petitioner, Ernest Moturi Ogwora, moved by Notice of Motion dated 4th August 2020 for injunctions to stop and revoke his 'forceful retirement' by the National Cereals and Produce Board following the Board's abolition of his office of Manager, Monitoring & Evaluation on 30th July 2020, contending that the retirement was discriminatory, retaliatory and procedurally flawed under the Respondent's HR Manual, the Employment Act and Article 47 of the Constitution. The 1st Respondent, by Notice of Motion dated 19th August 2020, sought to set aside the ex parte orders of 11th August 2020 revoking the retirement, arguing they were final in nature, issued without a hearing and overtaken by events. After considering written submissions, the Court observed that the Petition's main prayers concerned appointment or promotion to certain offices, including Managing Director, and did not include the issue of retirement. Since the Respondents had already retired the Petitioner, that grievance could not be remedied through an application lacking nexus with the substantive Petition. The Court struck out both applications, directed the parties to proceed with the Main Petition, and granted the Petitioner liberty to file a fresh Cause/Petition for the retirement issues. Costs were reserved to the Petition.

Key legal issues

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01

Nexus between interlocutory relief and the substantive Petition

Holding

The Court found the retirement and abolition issues were not part of the Petition, whose main prayers concerned appointment/promotion, so the interlocutory relief had no foundation in the pleadings.

Reasoning

The Court examined the Petition's prayers and found they related to appointment or promotion to certain offices, particularly Managing Director, not to retirement. Since the Respondents had already retired the Petitioner, that grievance could not be remedied through an application tied to a Petition seeking entirely different orders. The proper course was a fresh cause.

p. 5
02

Effect of the Respondent's unilateral retirement of the Petitioner pending suit

Holding

The Court noted the retirement was undertaken while orders remained in force but held it could not be cured through the present application.

Reasoning

The Court acknowledged that the Respondents' actions disregarded subsisting orders, in that they retired the Petitioner, affecting the 2018 orders. However, because the retirement claim was outside the Petition, the remedy lay in a fresh petition rather than the struck-out applications.

p. 4

Legal principles established

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  • Interlocutory applications must be tethered to the substantive suit; relief falling outside the pleadings should be pursued in a fresh cause

Court orders

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  1. 1.Both applications (Petitioner's Notice of Motion dated 4th August 2020 and 1st Respondent's Notice of Motion dated 19th August 2020) struck out
  2. 2.Parties directed to proceed with the Main Petition
  3. 3.Liberty granted to the Applicant to file another Cause/Petition to remedy the issues raised in the struck-out application
  4. 4.Costs in the Petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 27
  • Constitution of Kenya, 2010Article 50(1)
  • Fair Administrative Action ActSection 4(6)
  • Employment ActSection 5 (including s.5(6))
  • Employment ActSection 40
  • Employment ActSection 49(4)(c)
  • Civil Procedure ActSection 63(c) and (e)
  • Civil Procedure ActSection 3A
  • Public Service Commission - Human Resource Policies and Procedures for the Public Service 2016Clause J.22
  • NCPB HR Policy and Procedures Manual, 2019Clauses 11.7 and 11.10

Cases cited (11)

  • Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 others
    [2014] eKLR
  • UAP Insurance Company v Toiyoi Investment Limited
    [2020] eKLR
  • Samuel Mwinami v Social Service League & another
    [2016] eKLR
  • Anastacia Wagiciengo -vs- Ezekiel Wafula
    (2018) eKLR
  • Stephen Ndolo Wambua -vs- Beatrice Mbula Mutilu & 2 Others
    [2019] eKLR
  • ADETOUN OLADEJI (NIG) LTD Vs. NIGERIA BREWERIES PLC
    S.C. 91/2002
  • Giella vs Cassman Brown & Company Limited
    (1973) EA 358
  • Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 Others
    [2016] eKLR
  • Nguruman Limited vs Jan Bonde Nielson & 2 Others
    (2014) eKLR
  • Barclays Bank Of Kenya Limited v Banking, Insurance & Finance Union (Kenya)
    (2019) eKLR
  • Loice Mutai vs Kenya Revenue Authority
    (2017) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the pending Petition (Petition No. 145 of 2018) and interlocutory applications under the Civil Procedure Act

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, "Ernest Moturi Ogwora v National Cereals & Produce Board & another [2020] KEELRC 375 (KLR)", Case Analysis (2020). Petition No. 145 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/375/eng@2020-10-13

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