Kandie & 2 others v Communications Authority of Kenya (Cause 128 of 2015) [2015] KEELRC 64 (KLR)

ofJanuary 2015, and the Standard Newspaper of28th day January 2015 or any other publicationannouncing vacancies in the following listedposition, is suspended to wit: iv) v) vi) a. Chief Manager, Human Capital andAdministration; b. Chief Manager, Licensing and Standardsc. Chief Manager, Compliance and Enforcement. That pending the inter alia hearing anddetermination of this Application, theRespondent be ordered, whether by itself,assign, agent, organ or any person claimingthrough it, to forthwith publish an advertisementcarried in at least one newspaper of NationalCirculation, notifying the public that theRespondent’s newspapers carried in the DailyNation newspaper dated Friday, the 19th day ofDecember 2014, Daily Nation Newspaper ofMonday 26th day of January 2015, and thestandard newspaper of 28th day January 2015 orany other publication announcing vacancies inthe following listed position, is suspended, towit: a) General Manager, Technical Services b) General Manager, Corporate Afiairs c) General Manager, Support Services d) Chief Manager, Licensing and Standards; e) Chief Manager, Compliance and Enforcement; f) Chief Manager, IT Industry Policy and IS; g) Chief Manager, Frequency SpectrumManagement; h) Chief Manager, Broadcast and MultimediaServices; i) Chief Manager, Consumer and Public Afiairs j) Chief Manager, Market Research andDevelopment; k) Chief Manger, Human Capital andAdministration; l) Chief Manager, Finance; m) Chief Manager Legal Service; n) Chief Manager Risk and Internal Audit; and o) Chief Manager, Universal Service Fund That pending the inter parties hearing anddetermination of this Application, theRespondent be restrained whether by itselfassign agent organ or any person claimingthough it, from taking any further steps rename,modify, restructure or scrap the positions of: a. Director / Human Resource & Administration;and b. Director / Licensing Compliance & Standard; That pending the inter parties hearing anddetermination of this application, theRespondent either by itself, assign, agent, organor any person claiming through it from takingfurther steps to restructure, modify or scrap thepositions of: a) Director / Legal Services & CommissionSecretary; https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/64/eng@2015-12-17 2

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vii) viii) b) Director Finance & Accounts; c) Directory/ Competition, Tarifis & MarketAnalysis; d) General Manager Human Resource &Administration; e) Directory/ Information Technology; f) Director/ Licensing Compliance & Standards;and g) Directory Multimedia. That pending the inter alia hearing anddetermination of this application, theRespondent be retrained whether by itself,assign, agent, organ or any person claimingthrough it, from taking any steps to terminateemployment of declare redundant, interfere withthe positions and or rank of, or in any mannerwhatsoever interfere or further interfere with theemployment of the following employees of theRespondent: a) Mr. Juma Kiprono Kandie – Director / HumanResource & Administration; and b) Mr. Christopher Kemei – Director / Licensing,Compliance & Standards. That pending the hearing and determination ofthe claim herein the Respondent be retrained,whether by itself, assign agent, organ or anyperson claiming through it, from advertising orfurther advertising, renaming or taking any stepsor further steps to recruit or retain any thirdparty or parties to the position of: a) Chief Manager, Human Capital andAdministration; and b) Chief Manager Licensing and Standards; c) Chief Manager, Compliance and Enforcement.ix) THAT pending the hearing and determination ofthe claim herein, the Respondent be restrained,whether by itself assign, ,agent organ or anyperson claiming through it from taking any stepsto rename, modify, restructure or scarp theposition of: xi) a) Director Human Resources & Administration,and b) Director / Licensing, Compliance & Standards.x) THAT pending the hearing and determination ofthe claim, the Respondent be restrained,whether by itself, assign, agent, organ or personclaiming through it, from taking any furthersteps to restructure, modify or scarp the positionof:a) Director / Legal Services & CommissionSecretary; b) Director Finance & Accounts;c) Directory/ Competition, Tarifis & MarketAnalysis;d) General Manager Human Resource &Administration; e) Directory/ Information Technology; f) Director/ Licensing Compliance & Standards;and g) Directory Multimedia. That pending the hearing and determination ofthe claim herein, the Respondent be retrained,whether by itself, assign, agent organ or anyperson claiming through it from taking any stepsor further steps to terminate employment ofdeclare redundant, https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/64/eng@2015-12-17 3

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interfere with the positionand or rank of, or in any manner whatsoeverinterfere or further interfere with theemployment of the following employees of theRespondent. xii) xiii) a) Mr. Juma Kiprono Kandie – Director / HumanResource & Administration; and b) Mr. Christopher Kemei – Director / Licensing,Compliance & Standards. That pending the hearing and determination ofthe Claim herein, the Respondent be ordered,whether by itself, assign agent, organ or anyperson claiming through it, to forthwith publish an advertisement carried in at least onenewspaper of National Circulation, notifying thepublic that the Respondent’ newspaperadvertisement carried in the Daily Nationnewspaper of Monday 26th day of January 2015and the Standard Newspaper of the 28th ofJanuary 2015 or any other publicationannouncing vacancies in the following listedpositions, is suspended to wit: a) Chief Manager, Human Capital andAdministration; and b) Chief Manager Licensing and Standards; c) Chief Manager, Compliance and Enforcement. That pending the hearing and determination ofthe claim herein, the respondent be ordered,whether by itself assign, agent organ or anyperson claiming through it, forth worth publishan advertisement carried in at least onenewspaper of national circulation, notifying thepublic that the Respondent newspapersadvertisement carried in the Daily NationNewspaper dated Friday, the 19th day ofDecember 2014, Daily Nation Newspaper ofMonday 26th day January 2015 and the Standard Newspaper of 28th day January 2015 or any otherpublication announcing vacancies in thefollowing listed position, is suspended to wit: a) General Manager, Technical Services b) General Manager, Corporate Afiairs c) General Manager, Support Services d) Chief Manager, Licensing and Standards; e) Chief Manager, Compliance and Enforcement;f) Chief Manager, IT Industry Policy and IS; g) Chief Manager, Frequency SpectrumManagement; h) Chief Manager, Broadcast and MultimediaServices; i) Chief Manager, Consumer and Public Afiairs j) Chief Manager, Market Research andDevelopment; k) Chief Manger, Human Capital andAdministration; l) Chief Manager, Finance; m) Chief Manager Legal Service; n) Chief Manager Risk and Internal Audit; andChief Manager, Universal Service Fund. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/64/eng@2015-12-17 4

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2. The Application is supported by the grounds on the face ofthe Application which are further restated in theirsubmissions and on an Afidavit and supplementary Afidavitboth sworn by Juma Kiprono Kandie. 3. According to the Applicants, the gist of their case is that theRespondent’s Board Resolution of 3.12.2014 and 16.12.2014declared redundant all employees that served in thepositions of Directors or Assistant Directors. This wascommunicated to the employees vide a memo dated11.12.2014. The memo was to the efiect that all employeesserving in the position of Directors will be changed to ChiefManagers and General Managers and the Positon of AssistantDirectors to Senior Managers. The Respondent allegedlybrought this resolution to the Minister of Labour after theevent in a letter dated 19.12.204. In the said letter, itexplained the events as change of position from Director toChief Manager and that the process was not a restructuringbut a change of names and titles as the job descriptionsremain the same. According to the Claimant, theRespondent in its letter to the Minister for Labour purportedto change names and in the same breath declared theafiected employees redundant. The Respondent then proceeded to suspend provisions of its Human ResourceManual that was in confiict with the “renaming process”. 4. In a newspaper advertisements carried on the Daily Nationdated Friday 19th December, 2014, 26th January, 2015,Standard Newspaper dated 28th January, 2015 and the StarNewspaper dated 30th January, 2015, the Respondentproceeded to advertise the renamed positions of theApplicants and other Directors, terming them “vacant” andinvited suitable members of the entire public to apply to theRespondent by the 9th, February, 2015, in order to beconsidered to fill the purported vacant positions in theRespondent. The Respondent later on by a letter dated6.05.2015, wrote to the Minister of labour revoking its earlierdecision declaring the Applicants redundant.5. The Application came up for interpartes hearing on26.05.2015 and it is the Applicants’ submission that theinjunctive Orders sought against them are to stop theRespondent from restructuring or in other way renderingredundant employees serving as Director and AssistantDirector. According to the Applicants the Application isrequired to demonstrate a prima facie case with a likelihoodof success, irreparable loss and where the Court is in doubt,the balance of convenience must be in favour of theApplicant as was set out in the case of Match MastersLimited Vs Rhino Matched Limited (2006) eKLR. 6. The Applicants submit that redundancy should invoke adetailed summary of the roles and it should refiect in itsentire organizational structure. The Predecessor of theRespondent was called the Communications Commission ofKenya which was renamed Communications Authority ofKenya. 7. The Applicants submit that the Section 41(2) of the KenyaInformation and Communications (Amendment) Act No. 41Aof 2013 which provided for the renaming also preserved theterms of service, position and rank of employees of theCommunications Commission of Kenya that transited to theCommunications Authority of Kenya. 8. The Applicants also state that it was the Respondent’spractice that whenever the nomenclature of positionschange, the stafi holding the former position is automaticallyre-designated to the renamed position and that theylegitimately expected the said practice to apply to them. Tobuttress the doctrine of legitimate expectation the Applicantsrely on the case of Keroche Industries Limited Vs KenyaRevenue Authority & 5 Others (2007) KLR 240, wherethe Court stated that for an employer not to follow a practicethat it is legitimately expected to follow amounts to an abuseof power. 9. Further to the Respondent’s gross violation of the Applicants’rights, the Applicants state that at no point did theRespondent duly notify them and other employees serving inthe rank of Directors and Assistant Directors and the Labourofice of its decision to render them redundant. TheApplicants https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/64/eng@2015-12-17 5

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rely on the case of Kenya Union of Domestic,Hotels, Educational Institutions & Hospitals WorkersVs Mombasa Sports Club (2014) eKLR; which laid out theprocedure to be followed in redundancy as:“the employer must notify the union in writing at leastone month in advance of the reasons and extent ofredundancy, compliance with the principle of last in ,first out having regard to skill, merit, ability andreliability; the requirement to pay severance pay andthe requirement to give notice to the afiectedemployees in accordance with the termination ofemployment provision.” 10. They further rely on the case of Joseph Koech & AnotherVs County Government of Baringo & Another (2014)eKLR; in which the Court was of the opinion that once anemployee is appointed on permanent and pensionable basisas a substantive holder of an ofice, the employer cannotpurport to reappoint a party to the position substantivelyheld by an employee. 11. The Applicants further aver that they were not given ahearing as set out in Section 41(2) of the Employment ActNo. 11 of 2007 and Article 47(1), 236(b) of the Constitution. 12. The Applicant in conclusion states that if the Orders soughtare not granted the Applicants will sufier irreparable loss asthe Applicants’ employment stand to be terminated.The Respondent’s Case 13. The Respondent in opposition to the Application filed aReplying Afidavit deponed by one, Francis Wangusi, the Respondent’s Director General. He avers that the Respondent is constitutionally required to restructure inorder to improve on good governance and it is alsoempowered to appoint such oficers as are necessary for theproper discharge of the functions of the Commission uponsuch terms and conditions of service as the Board maydetermine. 14. That consequently the Board of the Respondent held ameeting on 3.12.2014, to deliberate on restructuring inconformity with the repealed Information and CommunicationAct and the Constitution of Kenya. The process, according tothe Respondent was informed by a report of Deloitte andTouche 2011 commissioned by a previous board and nowimplemented by the current board. As a result of the saidmeeting it was resolved to adopt the new organizational structure which introduced new positions. These newpositions were to be advertised both internally andexternally. The Claimants consequently filed the instant suitclaiming inter-alia that the advertisements were tantamountto constructive dismissal and/or a declaration of redundancyand that the entire recruitment process should be halted. 15. It is the Respondent’s position that the Claimants/Applicantshave not disclosed the substantive law that clothes this Courtwith jurisdiction to grant the wide Orders sought and thistherefore renders the Application null and void. Further theRespondent states that granting the said Orders would leadto paralysis of the Respondent organization. 16. The Respondent’s position is that the Claimants were notconstructively dismissed because they remain in the employof the Respondent and continue to earn salaries to date.They rely on the case of Maria Kagai Ligaga Vs Coca ColaEast and Central Africa Limited, quoted in the case ofKenneth Kimani Mburu & Another Vs Kibe MuigaiHoldings Limited (2014)eKLR ; where the Court definedConstructive dismissal and set the ingredients of constructivedismissal as: a. The employer must be in breach of the contract ofemployment b. The breach must be fundamental as to beconsidered as a repudiatory breach; c. The employee must resign in response to thatbreach; and d.The employee must not delay in resigning after thebreach has taken place, otherwise the Court mayfind such breach waived. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/64/eng@2015-12-17 6

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17. It is the Respondent’s position that none of the conductcomplained of falls within the criteria set out in theaforementioned case and the Claimants cannot therefore saythat they were constructively dismissed. 18. On the allegation of restructuring and reorganization of theRespondent, the Respondent submits that neitherrestructuring nor reorganization amounts to redundancyunless employees afiected were served with notice oftermination of employment. The Claimant’s job descriptionare still the same and they have not been served with anytermination notice and as such they have in no waywhatsoever been declared redundant. 19. The Respondent has cited the case of Bridgehouse LimitedVs Bilderbeck (1994) 2 ERNZ 243 quoted in the case ofAviation and Allied Workers Union Vs Kenya AirwaysLimited & 3 Others (2012) eKLR where Rika J definedredundancy as a situation where the afiected employeeshave done no wrong; neither their conduct, nor their capacity is in issue, it is only that in the circumstances, the employerfeels the employees are considered to be surplus to theneeds of the business. 20. In the instant case the Respondent is still in the process ofrestructuring and the Claimant’s positions are still intact andfor this reason the Respondent is of the view that theClaimants have come to Court prematurely. The Respondentcites the case of Kenya Plantation & AgriculturalWorkers Union Vs Bamburi Cement (2015) eKLR, whereRika J held that parties should wait until redundancy occursbefore instituting a suit. The Respondent therefore submitsthat the Claimants have not made a case for redundancy. 21. In addition to the above submissions by the Respondent, theRespondent has submitted on restructuring as a prerogativeof the employer and has cited the case of Kenya GameHunting and Safari Workers Union Vs Lewa WildlifeConservancy Limited, Industrial Cause No. 1567 of2011 where Rika J Held interalia that “The managerialprerogative is a fundamental principle in capitalistproduction. It must be protected and not consumed inthe liberal slide into egalitarian anarchy.” 22. The Respondent is also of the view that the Claimants havenot satisfied the requirements set out in the case of Giella vs Casman Brown for the granting of interim injunctions.They have cited the following reasons: 1. The Claimants have only demonstrated that there isongoing restructuring at the Respondent’sorganization which prerogative cannot be interferedwith unless it is exercised unreasonably; 2. The Claimants are welcome to reapply for the samepositions; 3. The Claimants have not been served with anytermination notice; 4. The Claimants are still in the employ of theRespondent and continue to receive salaries; 5. The Claimants will not sufier irreparable loss in theevent the Orders sought are not granted; 6. That the Respondent is already formulating exitpackages for those who will not be interested inreapplying for the new positions or who will not besuccessful after the recruitment; 7. The Respondent has considered its employees(including the Claimants) in the restructuringprocess by putting up internal advertisements forsenior positions to ensure that its employees getfirst priority; 8. That the balance of convenience tilts in favour ofthe Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/64/eng@2015-12-17 7

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23. The Respondent also filed an Application dated 20.04.2015seeking to set aside Orders of the Honourable Court haltingthe ongoing recruitment at the Respondent which benefitedparties not privy to the instant suit. The Respondent submitsthat the Orders issued by the Court are highly prejudicial tothe Respondent and are highly irregular and should be setaside in limine. 24. Upon considering the sub missions of both parties above, theonly issue this Court has to consider at this stage is whethera prima facie case has been established by the Applicant towarrant issuance of orders sought. 25. The guiding principle in granting of Interim Injunction is toassess whether the Applicant has established a prima faciecase with a likelihood of success. The Applicant must furtherdemonstrate that unless the conservatory orders aregranted, the Applicant will sufier irreparable loss or harm.Where the court is in doubt, the balance of convenience mustfill in favour of the Applicant. This principle was 1stestablished in the celebrated case of Giella vs CassmanBrown. 26. The principle in Giella vs Cassman Brown is not case instone though and in the case of Olympic Sports HouseLimited HCCC No. 190 of 2012 (2012) eKLR, the case ofSuleiman vs Amboseli Limited (2004) 2 KLR 589 OjwangAg. J. (as he then was) rendered himself as follows: “Counsel for the Defendant urged that the shape ofthe law governing the grant of injunction relief waslaid long ago in Giella vs Cassman Brown in 1973 cast in stone and no new element may be added tothat position. I am not with respect in agreementwith Counsel in that point for the law has alwayskept growing to greater levels of refinement as itexpands to cover new situations not exactlyforeseen before. Justice Hofiman in the Englishcase of Films Rover International made this pointregarding the grant of Injunctive relief (1986) 3 ALLER 772 at page 780 – 781”.“A fundamental principle of ----- that the Courtshould take whichever course appear to carry thelower risk of injustice if it should turn out to havebeen wrong-----------------Traditionally, on the basis of the well acceptedprinciples set out by the Court of Appeal in Giella vsCassman Brown the Court has to consider thefollowing questions before granting Injunctive relief------ even as these must remain the basis tests, it is worth adopting a further, albeit rather special andmore intrinsic test which is now in the nature ofgeneral principle. The Court is responding toprayers for Interlocutory Injunctive relief. Shouldalways opt for the lower rather than the higher riskof injustice -----------“. 27. In considering whether the Applicants herein haveestablished a prima facie case, I do refer to the chronology ofevents that have led to the present application. Theseevents are well captured above in the afidavits filed by theApplicants which show the movement of the Respondentfrom the Communications Commission of Kenya to theCommunications Commission of which was later renamed theCommunications Authority of Kenya the Respondent herein. 28. The positions of the Applicants have in all the previousengagements been preserved in terms of service, positionand rank. Whereas it is not the position of this Court that thismust always be the case, the question this Court needs toask is whether the process underway in restructuring theRespondents’ organization is above board and in determiningto what extend the Applicants would be afiected. It is notpossible to determine that case without having to hear thiscase fully. 29. On a balance of probabilities and in considering what thelower rather than higher risk of injustice will be, if I grantedor not granted the orders sought, I find that it would be lessrisky to grant the orders sought than not. This is because theRespondents still have an opportunity to do what they set todo in restructuring the company if the Court finds that theyought to proceed with the process. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/64/eng@2015-12-17 8

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30. The Applicants stand to sufier irreparable loss if this Courtdenies them the orders sought and later the Court finds thatit would have been prudent to confirm what they now seek. 31. Having found as above, I find that the application has meritand I allow it accordingly. 32. On the application filed by the Respondent to set asideInterim orders granted, I find that the same has no merit andI decline to set aside the exparte orders in force. 33. I therefore make orders in term of prayers (vii), (ix), (x),(xi) and xii). Costs of this application will be in the course. READ IN OPEN COURT THIS 17TH DAY OF DECEMBER, 2015 HON. LADY JUSTICE HELLEN WASILWA JUDGE In the presence of: Tebino holding brief Ahmed Nassir for the Respondents –Present Ojienda & Company Advocates for Applicants – Absent https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/64/eng@2015-12-17 9

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