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ELRCOtherNot stated in the extract· [2016] KEELRC 636 (KLR)

Kenya Council of Employment and Migration Agencies v Kenya Literature Bureau & 3 others [2016] KEELRC 636 (KLR)

Employment and Labour Relations Court
23 September 2016
1,786 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled you can sue the Government for an injunction under the Constitution, but declined to halt Kenya Literature Bureau's operations pending trial.

What this practically means

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Executive summary

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This interlocutory ruling of the Employment and Labour Relations Court at Nairobi, delivered by Abuodha Jorum Nelson on 23rd September 2016, determined a preliminary objection raised by counsel for the 1st respondent, the 1st and 3rd interested parties and the Attorney General, on the ground that the Petition contravened section 16(2) of the Government Proceedings Act (Cap 40), which forbids the grant of injunctions or orders against the Government. The respondents relied chiefly on Margaret Mbiyu v. Minister of Lands, contending that the Petitioner's remedy lay in judicial review rather than injunctive relief. The court observed that the Petition was badly drafted and its reliefs unclear, but gleaned that the Petitioner sought mandatory injunctions restraining the 3rd interested party, the incumbent Managing Director of Kenya Literature Bureau, from remaining in office pending recruitment of her successor, and restraining the 1st respondent's board from continuing until properly constituted. The court held that the authorities relied upon predated the Constitution of 2010; under article 23(3), a court hearing an article 22 petition may grant appropriate relief including an injunction. Section 16 of the Government Proceedings Act, insofar as it denies that remedy, conflicts with the Constitution and is null and void to that extent, and the preliminary objection failed. However, on its own motion the court vacated the interim injunction issued on 5th April 2016, holding that the balance of convenience favoured allowing the 1st respondent, a pivotal institution in the education sector, to continue operating normally, and that the Petitioner's integrity concerns, if proved, were remediable under article 23(3). The Petition was directed to proceed to trial on merit on a date to be fixed at the Registry.

Key legal issues

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01

Constitutionality of section 16 of the Government Proceedings Act barring injunctions against the Government

Holding

The preliminary objection based on section 16(2) fails because the statutory bar on injunctions against the Government is inconsistent with article 23(3) of the Constitution, which permits appropriate relief including injunction in article 22 proceedings, and is to that extent null and void

Reasoning

The court noted that both decisions relied on by the respondents (Royal Media v Telkom Kenya and Chogis Garage) predated the Constitution of 2010. Under the new constitutional dispensation, article 23(3) expressly authorises injunctions in proceedings brought under article 22. The statutory interdiction would deprive a person meriting such an order of a constitutionally provided remedy, creating a conflict resolved in favour of the Constitution. The preliminary objection therefore failed, though the court nonetheless vacated the interim injunction on its own motion on the balance of convenience.

p. 4
02

Whether the interim injunction issued on 5th April 2016 should stand pending trial

Holding

The interim injunction was vacated on the court's own motion because the balance of convenience favoured allowing the 1st respondent to continue its operations normally, and integrity concerns, if proved, are remediable under article 23(3)

Reasoning

The court held that Kenya Literature Bureau plays a pivotal role in the education sector and must be allowed to carry out its operations; no prejudice would be occasioned to the Petitioner by vacating the injunction. Allegations of integrity violations and malpractice could be submitted to competent authorities for investigation, and the substantive issues raised were reserved for trial of the main petition.

p. 4
03

Adequacy of the Petitioner's pleadings

Holding

The Petition was badly drafted and unclear on the reliefs sought, but the court indulged the in-person Petitioner and gleaned the substantive reliefs from the prayers

Reasoning

The court criticised the massive reproduction of constitutional and statutory provisions without connection to the matter, observing it was an example of bad drafting. Nevertheless, it discerned three reliefs: urgency certification and conservatory orders, restraint of interference with the Managing Director recruitment process pending vacation of office by the incumbent, and restraint of interference with the current board composition. The court suggested the organisation engage an advocate or draft more coherently in future.

p. 2

Legal principles established

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  • To the extent that section 16 of the Government Proceedings Act bars the grant of injunctions against the Government in proceedings for violation of rights under article 22, it conflicts with article 23(3) of the Constitution and is null and void
  • Under article 23(3), a court hearing a petition under article 22 may grant appropriate relief including an injunction against the Government

Court orders

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  1. 1.The preliminary objection fails
  2. 2.Section 16 of the Government Proceedings Act is declared, to the extent that it conflicts with the Constitution, null and void
  3. 3.The injunction orders made on 5th April 2016 are vacated
  4. 4.The Petition proceeds to trial on merit on a date to be fixed at the Registry

Authorities

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Legislation

  • Government Proceedings Act (Cap 40, Laws of Kenya)Section 16(2)
  • Constitution of Kenya, 2010Articles 22, 23(3), 35
  • Kenya Literature Bureau ActCap 209
  • Mwongozo Code of GovernanceNot specified

Cases cited (5)

  • Margaret Mbiyu v. Minister of Lands & 2 Others
  • Hon. Chirau Ali Mwakwere v. Robert Mobera & 4 Others
  • Francis Mbugu v. Commissioner of Police & 2 Others
  • Royal Media v. Telkom Kenya
  • Chogis Garage Limited v. Attorney General
Jurisdiction invoked
Articles 22 and 23(3) of the Constitution of Kenya 2010 (petition for enforcement of fundamental rights and freedoms)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Council of Employment and Migration Agencies v Kenya Literature Bureau & 3 others [2016] KEELRC 636 (KLR)", Case Analysis (2016). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/636/eng@2016-09-23

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