Marion Njeri Njoroge v James Karanja Nyoro & another [2019] KEELRC 625 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether to set aside the interim conservatory order of 25 September 2019
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
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.
Whether the proceedings should be stayed pending the two High Court petitions
Stay was refused; the hearing was adjourned for 30 days to await the outcome of Petition 361 of 2019 before Korir J
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.
Jurisdiction and standing of the petitioner
The court found it had exclusive jurisdiction over the employment dispute and the petitioner had standing
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).
Legal principles established
#- 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
#- 1.Declined to set aside the interim conservatory order issued on 25.9.2019
- 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.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.Ordered that costs shall abide the outcome of the petition
- 5.Directed the case to be mentioned on 18.11.2019
- Jurisdiction invoked
- Article 162(2)(a) and 165(5) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.