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ELRCDismissedNotice of Motion dated 17/5/2018· [2021] KEELRC 2137 (KLR)

Dalmas Oyugi v Speaker, Migori County Assembly & 3 others [2021] KEELRC 2137 (KLR)

Employment and Labour Relations Court
18 February 2021
MNMathews N. Nduma
943 words in judgment
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The bottom line

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The Employment Court refused to stop Migori County from disciplining its Chief Officer for Health, ruling he must first go through the lawful disciplinary process.

What this practically means

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Executive summary

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The claimant, Chief Officer for Health Services in Migori County and Accounting Officer of the Ministry of Health and Medical Services, moved the Court by Notice of Motion seeking a temporary injunction restraining the 3rd and 4th respondents from implementing a recommendation by the 1st and 2nd respondents, made on 14/5/2020, to suspend or terminate his services, or to declare his office vacant or fill it. He argued the recommendation was made abruptly without a hearing and without justifiable cause. The respondents, through a replying affidavit sworn by the Executive Officer to the Migori County Assembly, explained that the Auditor-General had audited the County Executive's financial statements for the period ending 30th June 2017; the Assembly's County Public Investment and Accounts Committee recommended that the claimant step aside to pave way for executive/administrative action by the Governor through the County Public Service Board. They argued the application was premature since the claimant had not yet appeared before the Board for disciplinary action. The Court framed one issue: whether the claimant had met the criteria for a conservatory order in the public domain set out by the Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji. Applying that test, Nduma J held that a lawful disciplinary process awaited the claimant before the County Public Service Board, an independent body vested with authority to conduct the process and give him a fair hearing, and that public interest dictated the Court should not pre-empt it. The application was dismissed with costs in the cause.

Key legal issues

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Whether a conservatory order should issue restraining the respondents from implementing recommendations to suspend or terminate the claimant

Holding

No. The claimant has not met the Munya criteria; the disciplinary process by the County Public Service Board has not yet occurred and the court will not pre-empt it.

Reasoning

Following the Supreme Court's guideline in Gatirau Peter Munya, conservatory orders are granted on the inherent merits of a case with regard to public interest. Here the claimant, as Accounting Officer of the Ministry of Health, faces a lawful disciplinary process before the County Public Service Board, an independent body obliged to give him a fair hearing. Inviting the court to intervene now would pre-empt and second-guess that process; the application is premature and lacks merit. The application was dismissed with costs in the cause.

p. 2

Legal principles established

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  • Conservatory orders bear a public-law connotation and should be granted on the inherent merits of a case bearing in mind public interest, constitutional values and proportionate magnitudes (Supreme Court guideline in Munya).

Court orders

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  1. 1.The application is dismissed with 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

Cases cited (1)

  • Gatirau Peter Munya –vs- Dickson Mwenda Kithinji & 2 others
    Applications No. 5 of 2014 [2014] eKLR
Jurisdiction invoked
Original employment jurisdiction of the Employment and Labour Relations Court; Article 159(2)(d) and Article 48 of the Constitution invoked on mode of delivery

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, "Dalmas Oyugi v Speaker, Migori County Assembly & 3 others [2021] KEELRC 2137 (KLR)", Case Analysis (2021). Notice of Motion dated 17/5/2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2137/eng@2021-02-18

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