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ELRCOtherPetition No. 86 of 2017· [2018] KEELRC 2519 (KLR)

Okiya Omtatah Okoiti v Ministry of Health & 4 others [2018] KEELRC 2519 (KLR)

Employment and Labour Relations Court
26 January 2018
RSRadido Stephen
775 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 that objections seeking to strike out Omtatah's petition would be decided together with the main case, not separately.

What this practically means

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Executive summary

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This is a directions ruling in a constitutional petition filed by Okiya Omtatah Okoiti on 11 October 2017 in the Employment and Labour Relations Court at Nairobi, Petition No. 86 of 2017. The Petitioner sought a declaration that Dr. Hezekiah Chepkwony and Dr. Pius Wanjala (the 4th and 5th Respondents) were not fit to hold public office, and an order compelling the Ministry of Health, the Public Service Commission and the Attorney General to take disciplinary action against them. The Petition invoked Articles 19, 20, 22, 23, 162(2)(a), 165(5)(b), 258(1) & (2)(c) of the Constitution, and alleged violations of national values and principles of governance under Articles 1, 2, 3(1), 10, 73, 75(1), 232 and 259(1), and contravention of rights under Articles 27, 41(1) and 47. On 18 December 2017, the 4th and 5th Respondents filed an application questioning the Court's jurisdiction and seeking to strike out the Petition on grounds of res judicata and abuse of court process. When the file came before Radido J on 23 January 2018, the Petitioner proposed that the application be treated as a response to the Petition, a position the 1st to 3rd Respondents did not oppose. The Court, noting that the application's grounds went to the core of the Petition and required fact-finding, directed that the application be heard together with the Petition. The application was taken as part of the 4th and 5th Respondents' answers, and a timetable was set for pleadings and submissions, with costs in the cause. The Petition itself was not determined; no findings on the merits were made.

Key legal issues

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01

Case management of a jurisdictional application (res judicata and abuse of process) in relation to the main petition

Holding

The Court directed that the 4th and 5th Respondents' application dated 18 December 2017 be treated as part of their answers/replies to the Petition, so that the jurisdictional objections would be determined together with the Petition at the substantive hearing

Reasoning

The Court considered brief oral addresses and the record. It noted that the grounds in the application went to the core of the Petition, and some would require the Court to ascertain the facts as at the time of filing. Hearing the application separately would not be prudent and would waste judicial time; both matters should be disposed of at once. A timetable for pleadings and submissions was then set.

p. 2

Legal principles established

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  • Where an interlocutory application raises grounds that go to the core of a petition and require ascertainment of facts existing when the petition was filed, it is prudent to determine the application together with the petition rather than separately

Court orders

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  1. 1.The 4th and 5th Respondents' application dated 18 December 2017 to be taken as part of their answer/replies to the Petition
  2. 2.The Respondents to file and serve their substantive answers/replies to the Petition on or before 16 February 2018
  3. 3.Petitioner at liberty to file and serve replies (if any) to the Respondents' answers/replies and submissions on or before 23 February 2018
  4. 4.Respondents to file and serve submissions on or before 2 March 2018
  5. 5.Submissions to be highlighted on a convenient date to be fixed on 2 March 2018
  6. 6.Costs in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2, 3(1), 10(1) & (2)(a) & (c), 19, 20, 22(1) & (2)(c), 23, 41(1), 47, 73, 75(1), 162(2)(a), 165(5)(b), 232(1)(a),(d),(e),(f) & (2)(b), 258(1) & (2)(c), 259(1)
Jurisdiction invoked
Articles 19, 20, 22(1) & (2)(c), 23, 162(2)(a), 165(5)(b) and 258(1) & (2)(c) of the Constitution of Kenya, 2010

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 Ministry of Health & 4 others [2018] KEELRC 2519 (KLR)", Case Analysis (2018). Petition No. 86 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2519/eng@2018-01-26

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