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ELRCDismissedNot stated in the judgment (Notice of Motion dated 24th September, 2019)· [2020] KEELRC 1176 (KLR)

Phyllis Kajuju M’ikiugu v Principal Secretary, Ministry of National Treasury & Planning & another [2020] KEELRC 1176 (KLR)

Employment and Labour Relations Court
30 April 2020
HWHellen Wasilwa
1,789 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 24th September 2019 brought by the applicant, a Senior Personal Secretary employed by the National Treasury since 1992, seeking interim orders: release of salaries withheld from March 2017, continued payment of full salary pending the main suit, restraint from interfering with her employment, expedited hearing of the main suit within three years, and leave to amend the Memorandum of Claim. She averred that after a Government-sponsored training in Arusha she faced hostility, was asked to await redeployment in 2016, was never redeployed, and had her name removed from the payroll from March 2017, causing severe financial and medical hardship. The Respondents, through a Replying Affidavit of Kenneth A. Odhiambo, admitted the employment relationship but asserted she was informed of deployment to the Prisons Department by letter of 5th May 2016, failed to report, was issued a show cause letter on 6th June 2017, and was dismissed with effect from 1st May 2018; they accused her of material non-disclosure of the dismissal and contended the orders sought would be final rather than interim, relying on East African Portland Cement, Olive Mugenda and Anthony Omari Ongera. No submissions were filed by the applicant. The court, Wasilwa J, held that granting reinstatement-type orders would be prejudicial given the asserted dismissal, dismissed the application, declared the claim should proceed on priority basis, and awarded costs in the cause.

Key legal issues

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01

Whether interim orders for payment of withheld salary and preservation of employment could issue where the Respondent asserts the employee was already dismissed

Holding

The application was dismissed; the court found interim reinstatement-type orders prejudicial to the Respondents and instead ordered the main claim to proceed on priority basis

Reasoning

The Respondents deponed that the Applicant had been deployed by letter dated 5th May 2016, did not report, and was issued a show cause letter dated 6th June 2017; her services were terminated with effect from 1st May 2018 by letter dated 2nd May 2018. The Respondents argued non-disclosure of the dismissal and that reinstatement is a final remedy unsuitable at interlocutory stage, relying on Anthony Omari Ongera v Teachers Service Commission. The court accepted that granting the orders would prejudice the Respondents and prioritised an early substantive hearing instead.

p. 4
02

Whether the Applicant was guilty of material non-disclosure of her dismissal

Holding

The court took account of the Respondents' contention that the Claimant had already been dismissed, which weighed against interim relief, though it made no express finding on non-disclosure

Reasoning

The Replying Affidavit of Kenneth A. Odhiambo admitted the employment relationship but asserted the Applicant was informed of deployment to the Prisons Department by letter dated 5th May 2016, failed to report, and was dismissed effective 1st May 2018. The Respondents contended the Applicant failed to disclose this dismissal to the court. The court's ruling that reinstatement would be prejudicial indicates it accepted the dismissal was at least a live contention justifying refusal of interim orders rather than a trial of the termination's fairness.

p. 3

Legal principles established

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  • Interim reinstatement orders cannot be granted where the employee has already been dismissed; such orders are final in nature and prejudicial at the interlocutory stage
  • Where interim relief is not granted, the appropriate course is to accord the claim priority hearing

Court orders

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  1. 1.The application is dismissed
  2. 2.Costs in the cause
  3. 3.The claim to proceed on priority basis, which the court declared

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) RulesRule 17(3), (4), (5) and (6)
  • Employment and Labour Relations Court ActSection 12(3)
  • Employment and Labour Relations Court Act, 2011Section 12(3)(vii)
  • Civil Procedure ActSections 1A, 1B, 3A and 63(e)

Cases cited (3)

  • East African Portland Cement Company Limited Vs Attorney General & Another
    (2013) eKLR
  • Olive Mwihaki Mugenda & Another Vs Okiya Omutata Okoiti & 4 Others
    (2016) eKLR
  • Anthony Omari Ongera Vs Teachers Service Commission
    (2017) eKLR
Jurisdiction invoked
Rule 17(3),(4),(5) and (6) of the Employment and Labour Relations Court (Procedure) Rules, Section 12(3) of the Employment and Labour Relations Court Act, Sections 1A, 1B, 3A and 63(e) 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, "Phyllis Kajuju M’ikiugu v Principal Secretary, Ministry of National Treasury & Planning & another [2020] KEELRC 1176 (KLR)", Case Analysis (2020). Not stated in the judgment (Notice of Motion dated 24th September, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1176/eng@2020-04-30

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