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ELRCDismissedConstitutional Petition No. 46 of 2015· [2016] KEELRC 1655 (KLR)

Idris Aden Mukhtar & 2 others v County Government of Garissa another [2016] KEELRC 1655 (KLR)

Employment and Labour Relations Court
23 February 2016
HWHellen Wasilwa
4,080 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court refused to reinstate dismissed Garissa County officials or punish the Governor for contempt, ruling a mere ministry reshuffle did not disobey its orders.

What this practically means

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Executive summary

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Two interlocutory applications were argued together before Lady Justice Hellen Wasilwa in this petition by former Garissa County Executive Committee members challenging their dismissal. The Petitioners' application dated 31.7.2015 sought a stay of directions given after the Ruling of 27.7.2015, reinstatement of interim orders vacated by that Ruling, and contempt proceedings against Governor Nathif Jama Adam for allegedly restructuring the ministries within an hour of the Ruling. The Respondents' application dated 25.08.2015 sought vacating of interim orders issued on 31.07.2015 and 14.08.2015, a declaration that the Petitioners were no longer CEC members, injunctions, and return of county property. The court framed four issues: functus officio, stay pending appeal, contempt, and any other orders. It held it was not functus officio since only interim applications had been decided and the main petition remained pending. The stay application failed because the orders of 27.7.2015 already preserved the Petitioners' positions by barring substantive filling, so refusal of a stay could not render the intended appeal nugatory, and the balance of convenience favoured not returning dismissed staff to office. On contempt, the court found the ministries had merely been re-organised, with no appointment letters exhibited showing substantive appointments following the nomination and county assembly approval process under sections 35 and 38 of the County Government Act. The applications were therefore refused; the orders of 27.7.2015 stand, reinstatement remains vacated, and the main petition was to be heard on a priority basis. No express costs order was made.

Key legal issues

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01

Functus officio

Holding

The court is not functus officio because it has only issued a ruling on interim applications and the main petition is still pending

Reasoning

The functus officio doctrine applies only after a court has pronounced final judgment disposing of the matter. Here the court had delivered a ruling on interim applications; the main petition remained undisposed of. The court could therefore still grant fresh orders, or review or vacate orders in force, depending on the application before it.

p. 6
02

Stay pending appeal

Holding

Stay refused; refusal will not render the appeal nugatory because the applicants' positions remain preserved and unsubstantively filled

Reasoning

Applying Order 42 Rule 6 of the Civil Procedure Rules and the Erinford principles, the court found that the orders of 27.7.2015 already preserved the applicants' positions by barring substantive filling. If the Court of Appeal later found reinstatement appropriate, the vacancies would still await them. The balance of convenience favoured not returning dismissed staff to a running county government.

p. 8
03

Contempt of court

Holding

Respondents not in contempt; no evidence of substantive appointments in breach of the order barring substantive filling

Reasoning

Under sections 35 and 38 of the County Government Act, appointments to the executive committee require nomination by the Governor and approval by the County Assembly. The applicants showed only a circular re-organising ministries, not appointment letters following the statutory process. A temporary reshuffle to keep services running did not breach the order.

p. 9

Legal principles established

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  • A trial court is not functus officio while the main petition remains undisposed of and only interim/ruling matters have been decided
  • Refusal of a stay will not render an intended appeal nugatory where the substantive orders preserve the applicant's positions
  • Contempt requires clear evidence of substantive disobedience of a court order; a temporary administrative reshuffle without appointment letters does not amount to contempt

Court orders

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  1. 1.Application for stay pending appeal and reinstatement of vacated interim orders refused
  2. 2.Application for contempt citation and committal of the 2nd Respondent dismissed
  3. 3.Orders given by the court on 27.7.2015 confirmed as still standing; orders reinstating the Applicants remain vacated
  4. 4.Respondents' application dated 25.08.2015 seeking to vacate the orders of 31.07.2015 and 14.08.2015 and for injunctions not granted
  5. 5.Hearing of the main Petition to be set down on priority basis

Authorities

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Legislation

  • Judicature ActSection 5
  • Civil Procedure RulesOrder 40(3)
  • Civil Procedure RulesOrder 42 Rule 6(1) & (2)
  • County Government ActSection 35(1)
  • County Government ActSection 38
  • Constitution of KenyaArticle 179
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (6)

  • Morris Vs. The Crown
    (1970) 1 ALL ER 1079
  • Ngucie Vs Kazeha Ngala
    (2012) eKLR
  • Jimmieson Mkumbo Mbogho t/a Ziotech Motors Vs Barclays Bank Limited
    (2014) eKLR
  • Erinford Properties Limited vs. Cheshire County Council
    ALL ELR (1974) VOL 2
  • Joseph Kingsley Karuri Maina vs. Housing Finance Company of Kenya & Another
    (2015) eKLR
  • Fredrick Wamburi Chege vs. James Karume Wanjema & 2 others
    Nairobi C.A Civil Appeal No. 338/2004 (2005) eKLR
Jurisdiction invoked
Original petition before the Employment and Labour Relations Court; applications brought under Order 40 and Order 42 Rule 6 of the Civil Procedure Rules

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, "Idris Aden Mukhtar & 2 others v County Government of Garissa another [2016] KEELRC 1655 (KLR)", Case Analysis (2016). Constitutional Petition No. 46 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1655/eng@2016-02-23

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