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ELRCDismissedNot stated in the excerpt (Petition pending before the Employment and Labour Relations Court, Nairobi)· [2019] KEELRC 625 (KLR)

Marion Njeri Njoroge v James Karanja Nyoro & another [2019] KEELRC 625 (KLR)

Employment and Labour Relations Court of Kenya
18 October 2019
3,621 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to lift orders stopping the Kiambu Deputy Governor from hiring or firing senior county staff while a legal challenge continues.

What this practically means

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Executive summary

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This is a ruling on an interlocutory Notice of Motion dated 1 October 2019 filed by James Karanja Nyoro, the Deputy Governor of Kiambu County and 1st Respondent in a petition before the Employment and Labour Relations Court. He sought to stay or discharge, and set aside, interim conservatory orders issued on 25 September 2019 restraining him from appointing, reshuffling, reassigning or dismissing officers of the Kiambu County Government contrary to section 32(4) and (5) of the County Governments Act, and to stay the proceedings pending determination of Nairobi High Court Petitions 373 of 2019 and 361 of 2019, which raised related questions on the constitutionality of section 32 of the Act vis-a-vis Article 179(5) of the Constitution. The petitioner opposed, contending that the orders were granted inter partes on demonstrated material, that the applicant was acting ultra vires section 32(4) by nominating, appointing and dismissing County Executive Committee members, and that the court had exclusive jurisdiction under Articles 162(2)(a) and 165(5). Applying Rule 25 of the Mutunga Rules and the Munya decision on conservatory orders, the court declined to set aside the order, holding the public interest and the preservation of the substratum of the employment petition justified retention. However, it varied the order to apply only to senior officers appointable and dismissible only by the Governor. The court affirmed its exclusive jurisdiction but, to avoid conflicting decisions, declined a stay and instead adjourned the hearing for 30 days to await the outcome of Petition 361 of 2019 before Korir J. The application was dismissed with costs to abide the outcome of the petition, and the case set for mention on 18 November 2019.

Key legal issues

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01

Whether to set aside the interim conservatory order of 25 September 2019

Holding

The court declined to set aside the order but varied it to apply only to senior officers who may only be nominated, appointed and dismissed by the Governor

Reasoning

Rule 25 of the Mutunga Rules empowers the court to set aside, vary or discharge conservatory orders, but this discretion is exercised cautiously and only where irreparable injury is shown. The order had been granted after hearing brief submissions and was necessary in the public interest to prevent the Deputy Governor from exercising powers reserved to a substantive Governor under section 32(4) of the County Governments Act; without it the substratum of the petition would be destroyed and the suit rendered moot.

p. 4
02

Whether the proceedings should be stayed pending the two High Court petitions

Holding

Stay was refused; the hearing was adjourned for 30 days to await the outcome of Petition 361 of 2019 before Korir J

Reasoning

The court affirmed its own exclusive jurisdiction under Articles 162(2)(a) and 165(5) since the dispute concerns employment in the public service. However, to avoid conflicting decisions with the High Court on the interpretation of section 32 of the County Governments Act, the court exercised judicial policy but declined a stay because the petitioner was not a party to the High Court proceedings and would be prejudiced; an adjournment of 30 days was a proportionate middle course.

p. 5
03

Jurisdiction and standing of the petitioner

Holding

The court found it had exclusive jurisdiction over the employment dispute and the petitioner had standing

Reasoning

Counsel for the applicant had argued the court lacked jurisdiction because the petition raised matters in rem and nothing under Article 41. The court, however, found the dispute related to employment in a public service context, attracting the exclusive jurisdiction of the Employment and Labour Relations Court under Article 162(2)(a) read with Article 165(5), and that any person may move the court under Article 22(1).

p. 5

Legal principles established

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  • The power to set aside, vary or discharge a conservatory order under Rule 25 of the Mutunga Rules must be exercised with great caution and only where the applicant will be irreparably injured
  • Conservatory orders bear a public-law connotation and are granted on the inherent merit of a case bearing in mind the public interest and constitutional values
  • Stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue

Court orders

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  1. 1.Declined to set aside the interim conservatory order issued on 25.9.2019
  2. 2.Varied the interim conservatory order so that it applies only to officers who under the Constitution and the County Governments Act are supposed to be nominated, appointed and dismissed only by the Governor
  3. 3.Declined to stay the proceedings but adjourned the hearing of the petition for 30 days to await the outcome of Petition 361 of 2019 before Korir J
  4. 4.Ordered that costs shall abide the outcome of the petition
  5. 5.Directed the case to be mentioned on 18.11.2019

Authorities

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Legislation

  • Constitution of KenyaArticle 179(5)
  • Constitution of KenyaArticle 41
  • Constitution of KenyaArticle 22(1)
  • Constitution of KenyaArticle 162(2)(a)
  • Constitution of KenyaArticle 165(5)
  • Constitution of KenyaArticle 73(1), (2)
  • Constitution of KenyaChapter 6
  • County Governments ActSection 32(4) and (5)
  • Civil Procedure Act, Cap 21Section 7
  • The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Rules 23 and 25
  • Constitution of Kenya (Protection of Fundamental Rights and Freedoms) Practice and Procedure Rules, 2013Not specified

Cases cited (5)

  • Bloggers Association of Kenya (Bake) v Attorney General & 5 others
    [2018] eKLR
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
    [2014] eKLR
  • Lucy Waithera Kimanga & 2 others v John Waiganjo Gichuri
    [2015] eKLR
  • Hon. Benjamin Koech v Baringo County Government & 2 Others, Petition 3 of 2019
    Petition 3 of 2019
  • Joseph C. Koech v Baringo County Assembly & 2 Others, Petition 12 of 2019
    Petition 12 of 2019
Jurisdiction invoked
Article 162(2)(a) and 165(5) of the Constitution

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, "Marion Njeri Njoroge v James Karanja Nyoro & another [2019] KEELRC 625 (KLR)", Case Analysis (2019). Not stated in the excerpt (Petition pending before the Employment and Labour Relations Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/625/eng@2019-10-18

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