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ELRCPartially AllowedPetition (application dated 27th June 2016; interlocutory ruling delivered 7th October 2016)· [2016] KEELRC 620 (KLR)

Okiya Omtatah Okoiti v President of Kenya & 6 others [2016] KEELRC 620 (KLR)

Employment and Labour Relations Court
7 October 2016
MNMATHEWS N. NDUMA
2,150 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The petitioner moved the court by application dated 27th June 2016 seeking a temporary order of prohibition suspending Gazette Notice No 4633 of 23rd June 2016, by which the President purported to appoint the 2nd interested party as Chairperson of the Betting Control and Licensing Board while revoking the appointment of the 3rd interested party. Interim orders were granted on 13th July 2016 maintaining the status quo ante. Instead of responding, the respondents, through the Hon. Attorney General, filed a counter application on 5th August 2016 seeking to set aside the orders of 3rd August 2016, arguing the matter had been spent because the Cabinet Secretary, Ministry of Interior had issued special Gazette Notice No. 5356 of 12th July 2016 revoking and substituting the presidential appointment. The petitioner meanwhile sought leave to amend the petition and to extend the interim orders to the new appointment. The court first deprecated the growing practice of filing counter applications instead of responses as inimical to expeditious administration of justice. It held the orders of 3rd August 2016 were validly issued in open court, and that the Gazette Notice issued while the matter was sub judice could not take effect. Applying Giella v Cassman Brown and Mrao Ltd v First American Bank, the court found a genuine and arguable case that the mid-term removal without reasons was unlawful, found no public interest imperilled by the incumbent's continued tenure, and allowed the application, directing that the 3rd interested party remain in office pending the hearing and determination of the petition. Costs were to follow the outcome.

Key legal issues

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01

Whether an interlocutory injunction should issue protecting the 3rd interested party's tenure pending determination of the petition

Holding

Yes - a primafacie case with probability of success was established, and the balance of convenience and public interest favoured maintaining the incumbent in office

Reasoning

Applying Giella v Cassman Brown as explained in Mrao Ltd v First American Bank, the court found a genuine and arguable case that the removal of the 3rd interested party without reasons, mid-term, was unlawful. No public interest was shown to be at peril by his continued tenure, and the value of holding office extends beyond monetary compensation to human dignity and equal treatment, favouring preservation of the status quo ante.

p. 4
02

Whether the orders of 3rd August 2016 were irregularly issued and should be set aside

Holding

No - the varied orders were issued in open court and reflect the true intention and directions of the court

Reasoning

The respondents contended the varied orders did not reflect the court's directions and were issued out of court. The court rejected this, recording that the varied order was issued in open court, and further held that a Gazette Notice issued after interim orders were in place could not undo those orders while the matter was sub judice.

p. 3

Legal principles established

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  • A Gazette Notice issued during the subsistence of valid court orders preserving the status quo cannot take effect, as the matter is sub judice.
  • The practice of bringing a counter application instead of filing a response to the initial application is undesirable and inimical to the proper and expedient administration of justice.
  • At the interlocutory stage the court refrains from making any determination on the merits, and need only find a genuine and arguable case.

Court orders

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  1. 1.The application dated 27th June 2016 (as amended/varied on 3rd August 2016) succeeds
  2. 2.The 3rd interested party remains in office as Chairperson of the Betting Control and Licensing Board pending the hearing and determination of the petition
  3. 3.The application by the Hon. Attorney General dated 5th August 2016 seeking to set aside the orders of 3rd August 2016 is disposed of with the determination
  4. 4.Costs to follow the outcome

Authorities

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Legislation

  • State Corporations Act, Cap 446Section 7(3)
  • Betting Lotteries and Gaming ActSection 3(1)(a)
  • Constitution of Kenya, 2010Article 135
  • Constitution of Kenya, 2010Article 41(1)
  • Constitution of Kenya, 2010Article 47
  • Fair Administrative Action ActNot specified

Cases cited (3)

  • Giella –Vs– Cassman Brown Company Limited
    [1973] EA 338
  • Mrao Limited –Vs– First American Bank of Kenya Limited and 2 Others
    Civil Appeal No 39 of 2002
  • Mary Aliviza and Okoth Mondol –Vs– Attorney General of Kenya & Secretary General of East Africa Community
    EALS 2005 – 2011 P4
Jurisdiction invoked
Not expressly stated; petition invoking the Constitution (Articles 41(1), 47, 135) and the Betting Lotteries and Gaming Act

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, "Okiya Omtatah Okoiti v President of Kenya & 6 others [2016] KEELRC 620 (KLR)", Case Analysis (2016). Petition (application dated 27th June 2016; interlocutory ruling delivered 7th October 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/620/eng@2016-10-07

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