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ELRCPartially AllowedNot stated in the judgment· [2023] KEELRC 2292 (KLR)

Letangule & another v Chief Executive Officer – National Heath Insurance Fund & 2 others (Cause E330 of 2023) [2023] KEELRC 2292 (KLR)

Employment and Labour Relations Court
2 October 2023
JGJACOB GAKERI
4,172 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court cancelled KEMSA employees' transfer-stay orders because they hid key facts, showing courts punish non-disclosure harshly.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi in an interlocutory Notice of Motion dated 19th June, 2023 in which the Respondents (including the Kenya Medical Supplies Authority) sought discharge or setting aside of temporary orders issued on 4th May, 2023 and extended on 22nd May, 2023, staying the transfer/posting of the 1st Claimant, James Leiro Letangule, to Kangemi Branch and the 2nd Claimant, Douglas Odhiambo Owino, to the Southern Region. The applicants contended that the Claimants failed to disclose material facts when obtaining the orders: their duties had already been taken over by Chrisostin Nyongesa Wafula and Wesley Bii in April 2023, the 2nd Claimant had handed over and reported to the new station, and the transfers had crystallised before the orders issued. They also argued the orders affected non-parties and that a Preliminary Objection on jurisdiction under Section 9(2) and (3) of the Fair Administrative Action Act was pending. The Claimants opposed, arguing setting aside the orders would deny them a hearing, occasion substantial loss, and that their signatures on handover documents were forged. Framing two issues — consequences of setting aside the orders, and material non-disclosure — the court found the Claimants had not proved substantial loss, dismissed the forgery allegations as unproven and reprehensible for want of credible evidence and police reporting, and, applying the Bahadurali Ebrahim Shamji duty of full and frank disclosure on ex parte applications, held the Claimants guilty of material non-disclosure. The court discharged the orders of 4th May, 2023 and ordered each party to bear its own costs.

Key legal issues

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01

Consequences of setting aside the interlocutory stay orders

Holding

The Claimants failed to prove they would suffer substantial loss or be denied a hearing if the orders were set aside

Reasoning

The court held that the right to be heard is a constitutional imperative, but the burden lay on the Claimants to demonstrate concrete consequences of setting aside the orders. They offered no material or authority on the nature or extent of alleged substantial loss, and the multiplicity-of-suits argument was dismissed as conjectural.

p. 6
02

Material non-disclosure in obtaining ex parte temporary orders

Holding

The Claimants were guilty of material non-disclosure and the temporary orders were discharged

Reasoning

Applying Bahadurali Ebrahim Shamji v Al Noor Jamal, the court found the Claimants failed to disclose that their duties had been taken over, replacements had reported, the 2nd Claimant had handed over and reported to the new station, and they did not disclose the status of their appeal. The prescribed penalty is discharge of the orders.

p. 9
03

Alleged forged signatures on the handover report

Holding

The forgery allegations were unproven

Reasoning

Forgery is a serious criminal offence; the Claimants attached no credible evidence of the alleged forgery and never reported the matter to the police. Hospital attendance on 24th April 2023 was not sufficient proof the 2nd Claimant did not sign the handover report on that date.

p. 7

Legal principles established

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  • An ex parte applicant owes the court a duty of full and fair disclosure of all material facts, and the penalty for material non-disclosure is discharge of the orders obtained
  • He who alleges must prove; unsubstantiated allegations of forgery do not advance a party's cause

Court orders

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  1. 1.The orders granted on 4th May, 2023 temporarily staying the transfer and/or posting of the Claimants by letters dated 3rd April, 2023 are discharged
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 4 Rule 1(f); Order 40 Rule 7; Order 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Sections 1A, 1B, 3, 3A, 63(e)
  • Fair Administrative Action ActSection 9(2) and (3)
  • Evidence ActSections 107, 109
  • Constitution of KenyaArticles 159(2)(d), 48

Cases cited (3)

  • Halima Haji Shah V Multiple Hauliers (EA) Ltd & another
    (2022) eKLR
  • Bahadurali Ebrahim Shamji V Al Noor Jamal & 2 others
    (1998) eKLR
  • Ruaha Concrete Co. Ltd & 2 others V Paramount Universal Bank Ltd & 2 others
    (2009) eKLR
Jurisdiction invoked
Not expressly invoked; interlocutory application under Order 4 Rule 1(f), Order 40 Rule 7 of the Civil Procedure Rules and Sections 1A, 1B, 3, 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, "Letangule & another v Chief Executive Officer – National Heath Insurance Fund & 2 others (Cause E330 of 2023) [2023] KEELRC 2292 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2292/eng@2023-10-02

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