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ELRCPartially AllowedNot stated in judgment· [2018] KEELRC 1731 (KLR)

June Mawia Munyao v Kitui County Public Service Board & 3 others [2018] KEELRC 1731 (KLR)

Employment and Labour Relations Court
22 June 2018
3,093 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled a county government and its public service board cannot share one lawyer, and cancelled all deals that lawyer made.

What this practically means

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Executive summary

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This ruling by Onsemus N. Makau J in the Employment and Labour Relations Court at Nairobi determines a preliminary objection dated 19th March 2018 filed by the petitioner in an employment-related constitutional petition against the County Public Service Board - Kitui and the County Government. The objection sought striking out of the respondents' replying affidavits sworn on 2nd March 2018 on grounds of defective commissioning under the Oaths and Statutory Declarations Act, non-compliance with Rule 9 on sealing exhibits, want of authority of the deponents, and a conflict of interest arising from the firm Chelanga Kihungi & Associates representing both the CPSB and the County Government. The respondents sought dismissal of the objection and had filed a notice of motion to regularize defects in the annexures. The court framed two issues: the competence of the replying affidavits and the alleged conflict of interest. It held that a conflict of interest exists because the CPSB is expected to act as an impartial arbiter in disciplinary disputes between the County Government and officers posted by the Board, so both entities cannot share the same counsel. The other grounds - place of swearing, authority of deponents and exhibit sealing - largely require evidence and could not be determined as a preliminary point, save that the exhibits were plainly not properly sealed and marked. The objection was held partially successful. The court directed the respondents to elect representation within 14 days, set aside all consent orders entered by the impugned counsel including the interim conservatory orders of 22.2.2018 and 7.3.2018, reopened the pleadings, and directed parties to take fresh directions. Costs were made to abide the outcome of the petition.

Key legal issues

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01

Conflict of interest in one law firm representing both the County Public Service Board and the County Government

Holding

There is a conflict of interest; the same counsel cannot continue representing both entities.

Reasoning

The 1st respondent (CPSB) has a legal obligation to be impartial in disciplinary proceedings between the County Government and officers posted to it by the CPSB, and is expected to act as arbiter between them. Since the County Government and the CPSB are distinct legal entities, joint representation compromises this impartiality. The court found the conflict established and directed the respondents to elect fresh representation within 14 days.

p. 4
02

Competence of the Replying Affidavits (place of swearing, authority of deponents, Rule 9 sealing of exhibits)

Holding

Only the improperly sealed and marked exhibits are addressed; the other complaints raise contested facts unsuitable for a preliminary objection.

Reasoning

The court held that most of the grounds raised require evidence to establish, citing the definition of a preliminary objection as a pure point of law. The court declined to strike out the affidavits on those factual grounds, but instead set aside consent orders and reopened pleadings so that no party would take advantage of the other.

p. 4
03

Effect of impugned instructions of defence counsel on consent orders

Holding

All consent orders entered by the impugned counsel were set aside to avoid any party taking advantage of the other.

Reasoning

The court noted the anomaly that the petitioner was enjoying interim orders granted via a consent by defence counsel whose instructions were impugned, but declined to determine the authority issue as a factual matter. Instead it set aside the consent orders, including the interim conservatory orders and the direction for disposal by oral submissions, and reopened the pleadings.

p. 4

Legal principles established

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  • The County Government and the County Public Service Board are distinct legal entities with potentially conflicting roles in disciplinary proceedings and cannot share the same counsel.
  • A preliminary objection must raise a pure point of law and not contested factual matters.

Court orders

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  1. 1.Defence counsel (Chelanga Kihungi & Associates) to stop representing the CPSB and the County Government simultaneously; respondents to choose who to represent them within 14 days
  2. 2.Set aside all consent orders entered by Mr. Chelanga, including the interim conservatory orders granted on 22.2.2018 and confirmed on 7.3.2018, and the direction that the petition be disposed of by oral submissions on the pleadings
  3. 3.Pleadings reopened; respondents at liberty to apply for reliefs to normalize their responses once representation is sorted
  4. 4.Petitioner at liberty to apply for any reliefs she may deem fit
  5. 5.Parties to take fresh directions on the manner of disposal of the petition and the Notice of Motion dated 20.2.2018
  6. 6.Costs to abide the outcome of the petition
Jurisdiction invoked
Original constitutional petition jurisdiction (petition filed 21.2.2018); no specific article cited in the ruling

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, "June Mawia Munyao v Kitui County Public Service Board & 3 others [2018] KEELRC 1731 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1731/eng@2018-06-22

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