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ELRCOtherPetition No. 194 of 2019· [2020] KEELRC 807 (KLR)

Clerk, Nairobi City County Assembly v Speaker, Nairobi City County Assembly & another; Orange Democratic Movement Party of Kenya & 4 others (Interested Parties) [2020] KEELRC 807 (KLR)

Employment and Labour Relations Court
22 May 2020
RSRadido Stephen
1,690 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This is a directions/ruling delivered by Radido J in a constitutional petition in which the Clerk of the Nairobi City County Assembly petitioned against the Speaker and the Nairobi City County Assembly Service Board, with two political parties and three Members of County Assembly as interested parties. The petition had a history of consent orders adopted by Makau J on 30 October 2019 allowing the Clerk to resume work unconditionally and sustaining interim conservatory orders. The Service Board subsequently filed successive urgent applications seeking to discharge, vary, review or set aside those consent orders, culminating in an oral application on 19 May 2020 to admit an Amended Notice of Motion (adding an order compelling county and national financial officials to recognise its appointee as Accounting Officer) and to obtain ex-tempore interim interdicts. The Court admitted the Amended Notice of Motion, holding that the constitutional practice rules abhor technical legalism and that no compensable prejudice would arise from dispensing with prior leave under Rule 18. However, it declined to grant the interim orders, reasoning that a different judge should not make substantive orders reversing a concurrent court's consent orders while the correctness of those proceedings was itself under challenge, especially as the trial judge was available albeit on leave. The Court set a submissions timetable and directed the file to the Principal Judge for allocation to the trial judge. Costs were reserved to the cause.

Key legal issues

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01

Admission of an Amended Notice of Motion without prior leave under Rule 18

Holding

The Amended Notice of Motion was admitted without prior leave

Reasoning

Counsel for the Board opposed admission arguing Rule 18 of the Mutunga Rules required prior leave before amending a pleading. The Court held the constitutional practice rules abhor technical legalism, that no formal responses had been filed to the earlier applications, and that any prejudice could be compensated with costs. It therefore admitted the amendment in the exercise of its discretion.

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02

Whether a different judge should grant ex-tempore interim orders reversing a concurrent court's consent orders

Holding

The Court declined to issue the interim interdicts and remitted the application to the trial judge (Makau J) for determination

Reasoning

The Board's application rested on depositions challenging what transpired in court on 30 October 2019 and the authority of advocates who recorded the consent. The Court reasoned that where the correctness of proceedings before a concurrent court is under challenge and the trial judge is merely on leave, fairness requires the trial court to hear and determine the application with all parties afforded an opportunity to respond.

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Legal principles established

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  • Leave prior to filing an amended pleading in a constitutional petition may be dispensed with where no prejudice is caused, as the Constitution and the Mutunga Rules abhor technical legalism
  • A court other than the trial court should not make substantive orders reversing consent orders given by a concurrent court where the correctness of the proceedings is under challenge and the trial judge is available

Court orders

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  1. 1.The Amended Notice of Motion is admitted
  2. 2.Nairobi City County Assembly Service Board to file/serve submissions (advance copy by email before end of 22 May 2020) before end of 26 May 2020
  3. 3.The Petitioner and other parties to file and serve responses/grounds of opposition/objections and submissions to the Amended Notice of Motion on or before 29 May 2020
  4. 4.The Nairobi City County Assembly Service Board to file any replies/further submissions before 5 June 2020
  5. 5.Submissions to be in font 12, at least 1.5 spacing and not exceed 5 pages
  6. 6.The file be placed before the Principal Judge on 8 June 2020 with a view to getting directions as to the earliest date the trial Judge may hear addresses from the parties/give further directions
  7. 7.Costs in the cause

Authorities

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Legislation

  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 18
  • Constitution of Kenyanull
Jurisdiction invoked
Original constitutional petition jurisdiction of the Employment and Labour Relations Court under Article 22/23 (Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 invoked)

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, "Clerk, Nairobi City County Assembly v Speaker, Nairobi City County Assembly & another; Orange Democratic Movement Party of Kenya & 4 others (Interested Parties) [2020] KEELRC 807 (KLR)", Case Analysis (2020). Petition No. 194 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/807/eng@2020-05-22

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