Ochieng v Principal Secretary, Ministry of Health & another (Cause 429 of 2014) [2014] KEIC 130 (KLR)

Industrial Court (Employment and Labour Relations Court)

26 March 2014

NMNzioki Wa Makau

1,124 words in judgment

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The bottom line

Kenya's Employment Court let a suspended government doctor study cancer medicine abroad, but only if he promised to serve Kenya for four years afterwards.

What this practically means

Executive summary

The Claimant, a State employee of over ten years, moved the court by Notice of Motion dated 19th March 2014 seeking, among other reliefs, release and facilitation to pursue oncology studies at Groote Schuur Hospital in South Africa, and raised issues of his suspension, salaries and allowances, confirmation of employment, and unfair working conditions contrary to Article 41(2) of the Constitution. He asserted he had been assured his studies would be facilitated and had incurred expenditure on an air ticket and visa. The Respondent opposed, arguing through Mr. Ngumi that the Claimant sought final orders at an interlocutory stage, that the orders were mandatory in nature, that public interest (given the roughly Kshs 16 million cost of the four-year course) overrode private interest, and that any loss was compensable in damages. The court applied the three-tier Giella v Cassman Brown test, found a prima facie case, and held that the unique, possibly once-in-a-lifetime study opportunity constituted the exceptional circumstance justifying interlocutory relief. It held it was in the public interest for the Claimant to proceed with the studies, subject to a bond securing four years of service to the people of Kenya and immediate return on completion. The suspension was left subject to the inquiry envisaged in the claim and the administrative action, with emoluments to be determined at the hearing by way of affidavit evidence. The application was partly successful, with costs in the cause.

Key legal issues

Whether a prima facie case existed for interlocutory relief

Holding

The court found a prima facie case applying the Giella v Cassman Brown test

Reasoning

The court placed all the material before it through the three tiers of the Giella v Cassman Brown test and concluded there was ground to find a prima facie case. It emphasized it was not required to make any final determination except for exceptional cause, and the unique oncology study opportunity constituted such an exceptional circumstance.

p. 2

Whether the orders sought were mandatory in nature and thus improper at interlocutory stage

Holding

Some reliefs were mandatory and could not be granted at the interlocutory stage

Reasoning

The court agreed with the Respondent that a number of the reliefs sought fell under the category of mandatory injunctions and could not all be granted at the interlocutory stage. Only the release and facilitation for studies was treated as justified, subject to the bond condition, with other issues deferred to the hearing.

p. 2

Whether public interest favoured the Claimant's release for studies

Holding

The court held it was in the public interest for the Claimant to proceed with the oncology studies

Reasoning

The court reasoned that oncology is an area of study of great public concern in the country, the training was for public good, and the benefits to the nation outweighed the considerable expense of about Kshs 16 million over four years. The caveat of a four-year service bond secured the public interest element.

p. 2

Legal principles established

The test for interlocutory injunctive relief is the three-tier test in Giella v Cassman Brown
A court may grant exceptional interlocutory relief where a unique, once-in-a-lifetime opportunity would otherwise be irretrievably lost
Interlocutory facilitation for study abroad may be conditioned on a service bond in the public interest

Court orders

1.That it is in the public interest for the Claimant to proceed to Groote Schuur for further studies
2.That the Claimant must sign a bond to secure his service to the people of Kenya for a minimum of 4 years upon successful completion of his studies
3.That the Claimant must return immediately upon completion of his course
4.That the suspension is subject to the inquiry envisaged in the Claim and the administrative action
5.That emoluments/entitlements be dealt with upon hearing to be undertaken by way of affidavit evidence
6.Costs in the cause

Authorities

Legislation

Constitution of KenyaArticle 41(2)
Constitution of KenyaArticle 23

Cases cited (7)

Giella v. Cassman Brown
Shepherd Homes v. Shabahu
Kenya Breweries & 2 Others v. Washington Okeyo
Locabil International v. Agroexport & Others
Kenya Hotels Properties Ltd. v. Willisden Investment
KNEC v. Republic ex parte Kemunto
ABN Amro v. Le Monde Foods

Jurisdiction invoked: Not expressly stated; reliefs anchored on Article 41(2) and Article 23 of the Constitution

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Ochieng v Principal Secretary, Ministry of Health & another (Cause 429 of 2014) [2014] KEIC 130 (KLR)", Case Analysis (2014). Cause No 429 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2014/130/eng@2014-03-26

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