Former Development Bank Company Secretary fails to stop hiring of her replacement
Debra Ajwang, who is seeking to be reinstated, had prayed to the court that the same may be overtaken by events if an injunction is not issued
A former senior employee at the Development Bank of Kenya Limited has failed in her bid to stop the lender from filling her position until a case she has filed in court is heard and determined.
Debra Anditi Ajwang, who was the bank’s Company Secretary/Head of Legal, has filed a case seeking relief for unlawful termination of employment and, in the meantime, to have the bank barred from hiring a new person for the job.
Ajwang, who in the main suit is seeking to be reinstated, had prayed to the court that the same may be overtaken by events if an injunction is not issued.
Other prayers were that the respondent is a public entity, hence should be managed and governed within existing laws and that a court of law should prevent impunity like the one exhibited by the Respondent and this can only be done by issuing conservatory orders.
Ajwang also averred that if conservatory orders were not issued, the bank will continue acting ultra vires.
However, the bank, through a replying affidavit by its Head of Human Resources, Dorcas Namwendwa,
which was filed on June 21 last year, accused Ajwang of failing to submit her end of probation report, within the required period, pointing out that the report was shared on September 23, 2023, about a month and a half after expiry of the probation period.
Namwendwa also accused Ajwang of intentionally frustrating her pre-confirmation appraisal, submitting that she was aware that the decision whether to confirm her or not was subject to review by the Board, through the Governance and Human Resource Committee.
Namwendwa further stated that the Board sat in November 2023 and considered the report that was submitted by Anditi alongside the comments of the supervisor who did not recommend her confirmation.
She was then issued with a letter dated December 19, 2023, terminating her probationary appointment.
The bank said that the prayer for Anditi’s reinstatement is misconceived since she has sought and secured employment at the Business Registration Service as a Corporation Secretary.
However, in a further affidavit, Anditi countered that her probation period lapsed on September 15, 2024, after which she was deemed to have been duly confirmed.
She also countered the bank’s averment that she was required to submit a pre-confirmation report.
Regarding her engagement with the Business Registration Service, she said that her employment is not permanent and the bank cannot take advantage of it to infringe on her rights.
In her ruling, Justice Linnet Ndolo observed that Ajwang’s application plea for an injunction was on the fact that she has sought reinstatement in the main claim. She, however, held that a prayer for reinstatement, by itself, cannot be used as the basis for granting of an injunctive order against an employer.
“I say so because, this premiere remedy is to be granted in exceptional circumstances, to be determined in full trial,” she said in her ruling delivered on Thursday.
Justice Ndolo also ruled that Ajwang cannot bar the bank from filling the key position of Company Secretary/Head of Legal.
“In its decision in Shem Arthur Ogao v Kenya Forestry Research Institute [2017] eKLR this Court held that there is no proprietary interest in a job. This would explain why Section 49 of the Employment Act makes provision for varied remedies available to employees whose rights have been violated. Even as employment claims are litigated in court, employers ought not be curtailed from carrying on business,” she said.
“In the present case, the Claimant has clearly moved on and obtained alternative employment. She cannot therefore be allowed to hold the Respondent at ransom. In any event, I am satisfied that if the Court eventually finds in her favour, a compensatory award would be adequate.”
“That said, I find and hold that the Claimant has failed to establish a case for an order in the nature of a prohibitive injunction against the Respondent,” she concluded, adding that costs will be determined in the main claim.
