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ELRCDismissedCause No E017 of 2023· [2023] KEELRC 3295 (KLR)

Mbandu & 6 others v County Government of Kakamega & 2 others (Cause E017 of 2023) [2023] KEELRC 3295 (KLR)

Employment and Labour Relations Court
7 December 2023
JKJemimah Keli
3,039 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court in Kakamega refused to halt recruitment for jobs once held by dismissed employees, ruling public interest outweighed their reinstatement hopes.

What this practically means

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Executive summary

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The Claimants, formerly accountants with the 1st Respondent, were dismissed on 1st December 2020 following an Ad hoc Advisory Committee report that found them culpable of misappropriation of public funds; their appeals to the 2nd Respondent and the Public Service Commission were unsuccessful except that the PSC on review awarded them 12 months' salary. They filed a claim on 13th September 2023 challenging the dismissal as procedurally unfair and unconstitutional, seeking reinstatement, withheld salaries, terminal dues and damages. By a Notice of Motion dated 11th October 2023, they sought a stay of the recruitment advertised by the 2nd Respondent for positions including their former ones, arguing that filling the positions would render their claim for reinstatement nugatory and deny them participation in the internal process. The 1st and 2nd Respondents opposed, arguing the advertisement was an internal promotion exercise for serving officers only, that the applicants were dismissed and ineligible, that reinstatement cannot be granted at an interlocutory stage, and that public interest and managerial prerogative favoured allowing recruitment. The court framed a single issue: whether allowing the recruitment to continue would render the claim academic. Applying the Supreme Court's distinction between conservatory orders and injunctions in Gatirau Peter Munya, the court held that public interest in the smooth running of public bodies outweighed the Applicants' private interest, that offices held in acting capacity could not be kept vacant indefinitely, and that damages would make the claim non-nugatory. Reinstatement could only be considered at full trial under section 49(4) of the Employment Act. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the court should stay the recruitment to the Applicants' former positions pending the claim

Holding

The application was dismissed; public interest in the smooth running of public bodies outweighed the Applicants' private interest, and damages would render the claim non-nugatory.

Reasoning

The court took judicial notice that the 1st and 2nd Respondents are public bodies run on public funds, so greater public interest lies in their continued operations. The advertised offices are held by persons in an acting capacity, which cannot continue indefinitely. The Applicants also claim damages, so the claim would not be academic if recruitment proceeds. Interfering with the employer's managerial prerogative over internal filling of vacancies was unwarranted.

p. 6
02

Whether reinstatement can be granted at an interlocutory stage

Holding

No; reinstatement can only be considered after a full trial under section 49(4) of the Employment Act.

Reasoning

The Applicants' stay application was essentially aimed at preserving positions in anticipation of reinstatement, which is a substantive remedy. The court adopted the respondents' argument that an order analogous to reinstatement cannot issue at an interlocutory stage, and that remedies under section 49 of the Employment Act remain available at the final determination.

p. 7

Legal principles established

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  • Reinstatement can only be considered at the conclusion of a full trial on merit under section 49(4) of the Employment Act, not at an interlocutory stage.

Court orders

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  1. 1.The application dated 11th October 2023 is dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Employment ActSection 49; Section 49(4)
  • Public Finance Management Regulations, No. 18 of 2012Section 93(3) and (5)
  • Public Officers Ethics Act, 2009Sections 8 and 9(1)

Cases cited (9)

  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
    [2014] eKLR
  • Joshua Rodney Marimbah v Kenya Revenue Authority
    (2021) eKLR
  • Kenya Power and Lighting Company Limited v Aggrey Wasike
    (2017) eKLR
  • Alfred Nyungu Kinungui v Bomas of Kenya
    (2013) eKLR
  • John Njeru v Intex Construction Ltd
    (2017) eKLR
  • Giella v Cassman Brown & Co.
    (1973) EA 358
  • Kenya Tea Growers Association v Unilever Tea Kenya Limited and Kenya Plantation and Agriculture Workers Union
    (2018) eKLR
  • Kenya Airways Limited Aviation & Allied Workers Union & 3 Others
    (2014) eKLR
  • Kenya Shipping Clearing Freight Logistics and Warehouse Workers Union v May Freight Ltd
    (2020) eKLR
Jurisdiction invoked
Employment and Labour Relations Court original jurisdiction (not expressly stated in the judgment)

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, "Mbandu & 6 others v County Government of Kakamega & 2 others (Cause E017 of 2023) [2023] KEELRC 3295 (KLR)", Case Analysis (2023). Cause No E017 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3295/eng@2023-12-07

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