Joseph Wanuma Hethinja, Joshua Ogamba Bosire, Veronica Wangui Mwaura, Irene Kirigo Wambugu & Andrew Karuiru Ndatho v County Secretary, County Government of Nyandarua, County Executive Committee Member, Agriculture, Livestock and Fisheries, Nyandarua County & Public Service Board, County Government of Nyandarua [2021] KEELRC 533 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR COURT OF KENYA

AT NAKURU

ELRC CAUSE NUMBER E056 OF 2021

JOSEPH WANUMA HETHINJA..........................1ST CLAIMANT

JOSHUA OGAMBA BOSIRE...............................2ND CLAIMANT

VERONICA WANGUI MWAURA........................3RD CLAIMANT

IRENE KIRIGO WAMBUGU.............................4TH CLAIMAINT

ANDREW KARUIRU NDATHO.........................5TH CLAIMANT

-VERSUS-

THE COUNTY SECRETARY,

COUNTY GOVERNMENT OF

NYANDARUA.................................................1ST RESPONDENT

COUNTY EXECUTIVE COMMITTEE

MEMBER, AGRICULTURE, LIVESTOCK

AND FISHERIES, NYANDARUA

COUNTY........................................................2ND RESPONDENT

PUBLIC SERVICE BOARD,

COUNTY GOVERNMENT

OF NYANDARUA......................................3RD RESPONDENT

(BEFORE HON. JUSTICE DAVID NDERITU)

RULING

1. In a Notice of Motion dated 12th October, 2021 the Claimants/Applicants pray for the following:

1. THAT this application be certified as urgent to be heard exparte in the first instance.

2. THAT the honourable Court be pleased to order the Respondents to pay the Claimants September 2021 salary arrears.

3. THAT this honourable Court be pleased to grant and injunction against the Respondents, its agents, servants and employees from harassing, intimidating and or negatively interfering with the activities and lawful duties of the Claimants pending hearing and determination of the Application.

4. THAT this honourable Court be pleased to grant and injunction against the Respondents, its agents, servants and employees from harassing, intimidating and or negatively interfering with the activities and lawful duties of the Claimants pending hearing and determination of this suit.

5. THAT this honourable Court be pleased to stay any disciplinary action against the Claimants pending hearing and determination of the Application.

6. THAT this honourable Court be pleased to stay disciplinary action against the Claimants pending hearing and determination of this suit.

7. THAT pending hearing and determination of this suit, this honourable Court do order the Respondents to reinstate the Claimants salaries.

8. THAT the Honourable Court be pleased to order the Respondents to pay the costs of this application.

2. The said application was filed under Certificate of Urgency  and  the same was certified as such on 14th  October, 2021 and  fixed for hearing on 2nd November 2021.

3. On 2nd November, 2021 Mr. Kirimi, learned Counsel  for the  Respondents, sought an adjournment to enable him file  responses to the application.  He  stated that he had just been  instructed Miss Wachira, learned Counsel for the  Claimants/Applicants, opposed the application for adjournment  and the court upheld the objection and ordered that the  application proceeds to hearing, albeit for interim prayers  pending inter-partes hearing.

4. In view of paragraph 3 above, while Counsel for the  Claimants/Applicants was free to argue the entire application on  matters of law and facts, Counsel for the Respondents was  lawfully restricted to respond on matters of law only.

5. This court is apprehensive that this is an interim application  wherein the Claimants are seeking certain orders pending the  hearing of the main suit.  Had the application been heard ex- parte  exclusively the court would have been more careful in  granting orders that might prejudice the Respondents who at this  juncture are still seeking time to file substantive responses.

6. But even then, at this juncture, the court has to exercise its  discretion in this matter with due care, caution, and diligence to  avoid prejudicing the Respondents who are pleading for time to  file substantive responses.  It is clear that most of the prayers  sought in this application demand that all parties be heard on  merit such that any interim orders granted pending the hearing  and determination of the suit are not prejudicial to either party.

7. Counsel for the Respondents has pleaded for seven (7) days to  file detailed responses and the court has already granted that  request.

8. In the circumstances this court has at this juncture to balance the  interests of justice as between the parties based on the law  applicable.

9. The said application is expressed as brought under the provisions of Section 12 of the Employment and Labour Relations Court Act, 2011 and rule 17 of the Employment and Labour Relations Court (Procedure) Rules, 2016.  The same is supported by Affidavits sworn by the Claimants/Applicants.

10. The gist of the Claimants’ application is that they have been  denied their monthly salaries by the Respondents not  withstanding that they are working and reporting to work as  required.  They are also taking issue with some pending  disciplinary action which they argue is based on actions by an  officer holding an “illegal” office or position.  It would appear  that there is a protracted legal battle between one JOSEPH  MAINA MACHANGI and the Respondents, concerning  termination of the said Mr. Maina and issues therein are boiling  over and confusing the Claimants/Applicants as to whose orders  or directions they should obey between the said Mr. Maina and  one Dr. Rose Oyolo.

11. In the circumstances, it would only be fair and just that both  sides be given an opportunity to argue the application on merit  with all materials placed before this court for a proper  determination on what orders may be granted pending the  hearing and determination of the main cause.

12. In the interim, pending the hearing of the application inter-partes  it is important to ensure that neither party is prejudiced and that  there is fairness both to the Claimants and the Respondents.

13. It has been held by this court in a plethora of decisions that a  court of law should not interfere with the powers and rights of  an employer to internally discipline any employee(s).  Counsel  for the Respondents cited ROSEMARY WAITHERERO  MBURU  V KENYA AIRWAYS LTD [2020] e KLR. Counsel  for the Claimants/Applicants however added that where the  disciplinary process is flawed in substance or procedure the  court should intervene and right the wrong in accordance with  the law.  This and many of the other issues can only be  determined once both sides are heard based on all materials filed  by both sides.

14. In the circumstances, this court is of the view that there is need  to have all materials placed before the court by all the parties  before the court can properly pronounce itself on the issues  raised. However, in the interim, pending the hearing and  determination of this application inter-partes, the  Claimants/Applicants are in distress and seeking some reliefs as  argued by their counsel on 2nd November, 2021.

15. The court has gone through the Notice of Motion, the supporting  affidavits, and the annextures thereto.  This court takes the view  that pending the hearing and determination this application  inter-partes there is need to preserve the status quo ante, that is  status before any action was taken by either party, more so the  Respondents, that gave rise to the filing of this cause.  That  way the parties shall be restored to their original positions as the  court considers the application upon canvassing of the same  inter-partes with all materials placed before the Court.

16. Article 159(2) of the Constitutionbinds this court to ensure  that justice is done to all and without delay.  Further, under  Section 3(1) of the Employment and the Labour Relations  Court Act No.20 of 2011, this court is bound to facilitate first,  expeditious, efficient, and proportionate resolution of disputes.  Therefore, as this court issues the interim orders, pending the  inter-partes hearing, the   inter-partes hearing must be expedited.

17. At this juncture, this court shall not dwell on the merits and or  demerits of the application or the main cause.  However, to  achieve the noble intentions stated in Paragraph 16 above, the  court shall issue interim orders that shall preserve the status quo  ante pending the hearing and determination of this  application inter-partes.

18. In the circumstances, pending the inter-partes hearing of the  Notice of Motion  dated 12th October, 2021 this court issues to  following orders:-

(1) That pending the inter-partes hearing and determination of  the Notice of Motion dated 12th October, 2021 the  Respondents be and are hereby ordered to pay the  Claimants/Applicants salary arrears for the months of  September and October, 2021 and to continue so paying  such monthly salaries as they fall due pending the hearing  and determination of the application inter-partes or until  further orders of this court.

(2) That the Respondents by themselves, their agents,  servants, or others howsoever be and are hereby injuncted  from taking  any disciplinary action against the  Claimants/Applicants  pending the hearing and  determination of this application  inter-partes.

(3) That the Respondents are directed to file and serve  their responses to the Notice of Motion within seven (7) days from 2nd November, 2021 and the  Claimants/Applicants shall  file and serve their responses  thereto within seven (7) days of service.

(4) That the application be disposed of on priority basis and  that the same be canvassed by way of written submissions  to be filed by the Claimants/applicants within seven (7)  days of (3) above and the Respondents to respond thereto  within seven (7)  days of service.

(5) Costs so far be in the cause.

DATED AND DELIVERED VIRTUALLY AT NAKURU THIS4TH DAY OF NOVEMBER, 2021.

................................

DAVID NDERITU

JUDGE