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Court of AppealPartially AllowedCivil Appeal No. 116 of 2015

Independent Electoral and Boundaries Commission v Wilson K.C. Shollei

Court of Appeal
16 February 2018
PWP. N. WakiRNR. N. NambuyePKP. O. Kiage
2,057 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled judges cannot decide a case's final outcome at an early stage, before full trial and evidence.

What this practically means

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Executive summary

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The Independent Electoral and Boundaries Commission appealed against orders of the Employment and Labour Relations Court (Maureen Onyango, J) which, on an interlocutory application, declared the termination of the respondent's employment null and void, directed that the status quo before termination prevail pending the conclusion of an anti-corruption case, and made no order as to costs. The Court of Appeal reduced the appellant's eighteen grounds to two issues: whether the Judge was correct in making a final determination in an interlocutory application, and whether she misapprehended section 62(4) of the Anti-Corruption and Economic Crimes Act. The Court held the first issue dispositive. Applying the Mbogo v Shah principles on interference with discretionary decisions, it found the Judge had made a non-direction by failing to address the Giella v Cassman Brown injunction criteria, and had impermissibly made firm, categorical findings - that the termination was unfair and null and void under the Employment Act and the Anti-Corruption and Economic Crimes Act - on the very substantive issues still pending trial, contrary to AGIP (K) Ltd v Vora. The Court declined to express any view on the construction of the Anti-Corruption and Economic Crimes Act provisions, which remain pending below. The appeal was allowed; the Judge's orders were set aside and substituted with an order dismissing the motion dated 24th September 2012 with costs; the appellant received the costs of the appeal; and the respondent's statement of claim was directed to proceed expeditiously before a Judge other than Maureen Onyango, J. This decision binds subordinate courts and tribunals on the impropriety of conclusive findings at interlocutory stage.

Key legal issues

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01

Interference with discretionary decisions on appeal

Holding

The learned Judge's discretion was improperly exercised: she made a non-direction on injunction principles and made conclusive findings at interlocutory stage, justifying reversal.

Reasoning

The Court restated the Mbogo v Shah test for interfering with discretionary decisions. The impugned ruling made no attempt to address the Giella criteria, amounting to a non-direction and failure to consider relevant factors - an error in principle inviting interference.

p. 2
02

Final determination at interlocutory stage

Holding

A judge at interlocutory stage may not make firm, categorical findings on issues pending trial and evidence; doing so embarrasses fair adjudication and is an error warranting reversal.

Reasoning

The Judge made categorical findings that the termination was unfair and null and void under sections 41, 43 and 45 of the Employment Act and sections 62 and 63 of the Anti-Corruption and Economic Crimes Act - the very issues pending hearing. Following AGIP v Vora, such premature conclusions are impermissible.

p. 4
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Section 62(4) of the Anti-Corruption and Economic Crimes Act

Holding

The Court declined to express any view on the construction and interplay of the Act's provisions, as they remain pending before the court below.

Reasoning

Although the second ground of appeal concerned section 62(4), the Court held that the issue involved construction, application and interplay of various provisions of the Act still pending determination before the trial court, so it prudently expressed no view.

p. 3

Legal principles established

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  • An appellate court will not interfere with a judge's exercise of discretion unless the judge misdirected himself, arrived at a wrong decision, or was clearly wrong resulting in misjustice.
  • A judge at interlocutory stage must not make final, conclusive findings on substantive issues pending trial; such premature pronouncements embarrass fair adjudication.
  • Each Giella criterion - prima facie case, irreparable injury, balance of convenience - must be addressed and satisfied sequentially and independently before an injunction can issue.

Court orders

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  1. 1.Appeal allowed
  2. 2.Orders of the learned Judge set aside and substituted with an order that the motion dated 24th September, 2012 be dismissed with costs
  3. 3.Appellant to have the costs of the appeal
  4. 4.Respondent's statement of claim to proceed to hearing expeditiously before a Judge of that court other than M. Onyango, J
On appeal from
Employment and Labour Relations Court at Nairobi
Industrial Cause No. 1663 of 2014
Jurisdiction invoked
First appellate jurisdiction over the Employment and Labour Relations Court (Employment and Labour Relations Court Act); appeal as of right on facts and law

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Independent Electoral and Boundaries Commission v Wilson K.C. Shollei", Case Analysis (2018). Civil Appeal No. 116 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/848/eng@2018-02-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.