Jonathan Kipchoge v Sylvester Kimaiyo & 2 others [2018] KEELRC 1028 (KLR)

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT KISUMU CAUSE NO. 101 OF 2018 (Before Hon. Justice Mathews N. Nduma) JONATHAN KIPCHOGE............................................ CLAIMANT VERSUS PROF. SYLVESTER KIMAIYO.....................1ST RESPONDENT PROF. WINSTONE NYANDIKO...................2ND RESPONDENT AMPATH PLUS................................................3 RD RESPONDENT RULING 1. The Claimant/Applicant filed, Notice of Motion application on 13 th April, 2018 seeking inter alia an injunction to restrain the Respondent from implementing the notice of termination of the Claimant/Applicant dated 7 th March, 2018 until the application was heard and determined. 2. The court did not grant interim exparte orders. The Applicant further sought to restrain the Respondent from recruiting and replacing the Applicant from the position of Human Resource Manager pursuant to an advertisement dated 9 th March, 2018. 3. The basis of the application was that the purported termination was unlawful and unfair since the contract of service of the Claimant/Applicant was due to expire on 31st March, 2019. 4. In terms of the end of contract notice/release provided by the Claimant/Applicant dated 7 th March 2017, the last day of the Claimant/Applicant in office was 30th April, 2018 on the basis of none renewal of the current contract of the Claimant/Applicant which was due to expire on that date. A Statement of Claim has been filed simultaneously with the application seeking various reliefs including a declaration that the termination of the contract of service was unlawful, discriminatory and constituted unfair labour practice. 5. The Claimant/Applicant seeks an order of reinstatement to the position he previously held of Human Resource Manager until the expiry of his term. The Claimant seeks payment of all his dues in terms of the contract. 6. The application was opposed vide a Replying Affidavit sworn by Prof. Sylvester Kimaiyo the 1 st defendant filed on 17th July, 2018 in which it is stated that the Claimant/Applicant served on a fixed term contract from 22 nd August, 2016 until 31st December, 2017. That it is not correct that the contract was not to end on 31st March, 2019. That renewable of the contract was not automatic. 7. The Respondents allowed the Applicant an extension of four (4) months upon a personal request since the Applicant had been shortlisted for the position of Deputy County secretary in the County Government of Vihiga and he was waiting for a confirmation of appointment. 8. The Respondent has also filed a reply to the statement of claim. Determination 9. The Law as to grant of interim injunctions is very clear in terms of the case of Giella v Cassman Brown Limited. The Claimant/Applicant has failed to establish a prima facie case, with a probability of success to warrant grant of an interim injunction.

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