Moses Nyambega Ondieki v Vice Chancellor, Masai Mara University, Chairman of Council, Maasai Mara University, Maasai Mara University & Chairman, Audit Committee, Maasai Mara University [2017] KEELRC 539 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU

CAUSE NO. 506 OF 2016

MOSES NYAMBEGA ONDIEKI                              CLAIMANT

V

VICE CHANCELLOR,

MASAI MARA UNIVERSITY                    1ST RESPONDENT

CHAIRMAN OF COUNCIL,

MAASAI MARA UNIVERSITY                2ND RESPONDENT

MAASAI MARA UNIVERSITY               3RD RESPONDENT

AND

CHAIRMAN, AUDIT COMMITTEE,

MAASAI MARA UNIVERSITY            INTERESTED PARTY

RULING

1. The Claimant herein instituted legal proceedings against the Respondent through the firm of Kwengu & Co. Advocates.

2. The Statement of Claim was accompanied by an application under certificate of urgency, but because the motion sought orders which were substantially similar to the substantive reliefs sought, the Court directed that the Cause be expedited for hearing and timelines were set to achieve that objective on 26 January 2017.

3. The parties complied save for filing of Agreed Issues and on 3 March 2017, the Court directed that Agreed Issues be filed before 17 March 2017.

4. However, the Claimant changed his Advocates on record who filed a motion dated 24 April 2017.

5. The motion sought

1. …(spent)

2. …(spent)

3. ….(spent)

4. THAT pending the hearing and determination of this application and the main claim herein, this Honourable Court do issue an order prohibiting the Respondent from declaring a vacancy and/or filing up the Claimant’s position in the Respondent’s institution.

6. The first 3 orders (now spent) sought by the Claimant were granted on 26 April 2017 because they were procedural and were seeking the motion to be certified as urgent and leave to amend the Statement of Claim. Both parties were represented during the proceedings, but the determination of the order seeking injunctive relief was to wait taking of arguments at an inter parteshearing.

7. The motion was served and the Court took arguments on 10 July 2017. Pending delivery of ruling today, the Court granted temporary relief.

8. The Claimant was at the times material to the application a Senior Internal Auditor until his suspension on 23 February 2016.

9. On 24 March 2017, the 3rd Respondent advertised several vacancies including that of Internal Auditor-Grade MMU 13 and the advertisement prompted the Claimant to file the instant application.

10. The Respondents filed a replying affidavit through Alfred Ongeta Nyabochwa, its Legal Officer in opposition to the motion on 7 July 2017.

11. The Legal Officer has affirmed on oath in paragraphs 3, 5 and 7 that the Claimant remains in his position pending the disciplinary case.

12. Considering the deposition(s), and further considering that the Court has now been granted the jurisdiction to order reinstatement and or re-engagement, the Court is of the view that granting the order sought would not prejudice the Respondents or amount to undue interference with an employer’s managerial prerogative.

13. The Court therefore allows the proposed order 4.

14. The Court further orders, based on personal reasons, that this Cause be transferred to Nairobi for further proceedings and hearing before any other Judge.

15. Costs in the cause.

Delivered, dated and signed in Nakuru on this 6th day of November 2017.

Radido Stephen

Judge

Appearances

For Claimant         Mr. Onyony instructed by Onyony & Co. Advocates

For Respondent    Mr. Lubullelah instructed by Lubullelah & Associates, Advocates

Court Assistants   Nixon/Martin