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ELRCDismissedCause (Notice of Motion dated 5th December 2019) – Employment and Labour Relations Court· [2020] KEELRC 1115 (KLR)

Victor Kiptanui v Wevarsity Sacco Society Limited [2020] KEELRC 1115 (KLR)

Employment and Labour Relations Court
30 April 2020
MNMathews N. Nduma
1,297 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 stop Mwalimu Sacco from filling its CEO vacancy because the demoted employee failed to prove a clear, winning case at this early stage.

What this practically means

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Executive summary

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By a notice of motion dated 5th December 2019, the applicant, formerly Chief Executive Officer of the respondent Sacco, sought a temporary injunction restraining the respondent from advertising the CEO vacancy, filling it, or replacing him pending hearing of his cause. The applicant had been employed on 5th May 2014 under a contract dated 10th March 2014 on permanent basis. Following a show cause letter of 26th June 2019 alleging irregular disbursement of a Kshs. 2,000,000 loan to a member, he was placed on compulsory leave, appeared at a disciplinary hearing on 30th October 2019, and by letter dated 15th November 2019 was demoted to Internal Auditor and surcharged Kshs. 2,795,411. The surcharge was reversed on appeal but the demotion upheld. He contended the demotion was unlawful, unfair and intended to force his resignation. The respondent opposed, arguing the application was misconceived, the deployment lawful and fair, the applicant never substantively held the CEO post, the Internal Audit position exists under the Sacco Societies Act, and the prayers were mandatory in nature. Applying Giella v Cassman Brown and Mrao, the court held that disputed facts must await trial, that the applicant had not disclosed a case warranting an injunction against filling the CEO position, and that the balance of convenience favoured the Sacco being managed lawfully and prudently for its members, the applicant retaining a substantive position in Internal Audit. The application was dismissed with costs in the cause. The ruling was delivered online in accordance with COVID-19 directives.

Key legal issues

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01

Whether the applicant demonstrated a prima facie case with probability of success

Holding

No prima facie case was disclosed; there are disputed facts to be resolved at trial

Reasoning

The court declined to pre-determine factual matters reserved for the full hearing. The respondent disputes that the applicant held the CEO position substantively, and the disciplinary process that led to the demotion raised contested factual issues. The court found no disclosed case warranting an injunction to stop the respondent from filling the CEO position, and the balance of convenience favoured the Sacco being managed prudently for members' benefit.

p. 2
02

Balance of convenience

Holding

It favours the respondent since the Sacco's primary obligation is safeguarding members' savings and prudent management

Reasoning

The court held that the respondent Sacco is custodian of members' savings and its primary objective is to safeguard those savings with fairness and equity; employees' individual interests are secondary. The Sacco should continue to be managed lawfully and prudently for members' benefit, and the applicant still holds a substantive position in the Internal Audit Department if he wishes to continue serving.

p. 2

Legal principles established

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  • The grant of a temporary injunction is a matter of sound judicial discretion, not of right, requiring the applicant to show a prima facie case with probability of success, irreparable harm not compensable by damages, and, if in doubt, the balance of convenience

Court orders

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  1. 1.The application dated 5th December 2019 seeking a temporary injunction is dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 18
  • Civil Procedure RulesOrder 21 rule 1
  • Sacco Societies Act

Cases cited (4)

  • Giella versus Casman Brown Ltd
    (1973) EA 358
  • Mrao Limited versus The First American Bank of Kenya
    (2003) KLR
  • Charter House Investments Limited vs Jimo K. Say and others
    Civil Appeal No. 315 of 2004
  • Elizabeth Agutu Odhiambo Versus Waumini Sacco Society Limited
    (2019) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes; ruling delivered online pursuant to Article 159(2)(d) and Article 48 of the Constitution and Section 18 of 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, "Victor Kiptanui v Wevarsity Sacco Society Limited [2020] KEELRC 1115 (KLR)", Case Analysis (2020). Cause (Notice of Motion dated 5th December 2019) – Employment and Labour Relations Court. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1115/eng@2020-04-30

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