The Employment and Labour Relations court has declined to suspended a case before it filed by activist Okiya Omtata challenging the Kenya Ports Authority's (KPA) decision to send managing director Catherine Mturi-Wairi home.
Through lawyers Cecil Miller and Anne Kaguri, KPA had sought to have the case stayed (suspended) pending hearing and determination of a similar case filed at the High Court by a Kilifi resident.
The High Court suspended the decision to send Ms Mturi-Wairi on compulsory leave and the subsequent appointment of Dr Daniel Manduku to the position in an acting capacity.
Justice James Rika on Thursday said the case before him will proceed and that the High Court will make its decision on whether the case before it will be transferred or not.
According to Mr Miller, the Labour court may give a verdict conflicting with the order issued by Justice Eric Ogola temporarily reinstating Ms Mturi-Wairi, hence exposing the two courts to ridicule and embarrassment.
“That in turn, conflicting decisions of the two courts will leave the applicant in an awkward position of not knowing which of the two orders to comply with if the two are dissenting,” said Mr Miller in his application.
The application by KPA was opposed by Mr Omtata who argued that the dispute relates to an employment contract.
“The High Court cannot interrogate the contracts of employment, the petition should remain here,” Mr Omtata told Justice Rika.
Justice Rika also declined to grant conservatory orders sought by Mr Omtata in his application seeking a suspension of the decision to sack Ms Wairi as the MD.
The court directed Mr Omtata to serve the respondents with suit papers pending inter-parties hearing on June 28.
The activist also wants an injunction prohibiting the KPA board of directors and Attorney General from effecting the decision to sack Ms Wairi and replacing her with Dr Manduku in an acting capacity.
He is seeking the orders pending hearing and determination of the application and his petition challenging the decision made on May 30 at a special KPA board meeting chaired by Mr Michael Maina to sack Ms Wairi.
According to Mr Omtata, the purported changes in the office of MD-KPA are nullity in law having been made by the board that lacked quorum and which had been infiltrated by strangers.
He argued that only three out of 11 bona fide board members were at the special meeting.
Mr Omtata further argued that KPA has no substantive chairman following the lapse of Major (Rtd) Marsden Madoka’s term on April 15, adding that there is due process to be followed to discuss the MD.
“A meeting to discuss the MD cannot be held without a substantive chairman, as it stands, it is not possible to discuss the MD.”
High Court judge Eric Ogola on Tuesday issued the temporary order suspending implementation of KPA's decision to send Ms Wairi on leave and appoint Dr Manduku.
Justice Ogola of the Constitutional and Judicial Review division of the High Court issued the orders pending hearing and determination of an application by a Kilifi resident - Mr Emanuel Chengo Kenga.
Mr Kenga has sued KPA, the Transport Cabinet Secretary and the Attorney General. Ms Wairi and Dr Manduku have been named as first and second interested parties respectively.
According to the application by Mr Kenga, KPA’s board of directors proceeded to unconstitutionally and un-procedurally send Ms Wairi on compulsory leave.
The case before Justice Ogola will be mentioned next Tuesday.
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