Clerk, Nairobi City County Assembly v Speaker, Nairobi City County Assembly & another;Orange Democratic Movement Party Of Kenya & 4 (Interested Parties) [2020] KEELRC 1030 (KLR)
The bottom line
#Kenya's Employment Court allowed an amended motion filed without prior leave, but refused to let one judge reverse another judge's consent orders.
What this practically means
#Executive summary
#Key legal issues
#Admission of an amended pleading in a constitutional petition without prior leave
The Amended Notice of Motion was admitted orally despite Rule 18 requiring prior leave, because the rules abhor technical legalism and no party had filed formal responses to the earlier applications, and no compensable prejudice was shown
The Court reasoned that the constitutional framework and the 2013 Practice and Procedure Rules discourage technical legalism. Since the other parties had not filed formal responses to the earlier applications seeking to set aside the consent orders, and any prejudice could be compensated by costs, refusing admission on procedural grounds was unwarranted. The amended motion was therefore admitted.
Whether a different judge should grant ex tempore orders reversing consent orders made by a concurrent judge
The Court declined to grant the interim interdicts, holding that the trial judge who made the consent orders, who remained in station albeit on leave, should deal with the applications after all parties have been heard
The Court observed that the 2nd Respondent's depositions challenged both what transpired before Makau J on 30 October 2019 and the authority of the then advocates. In such circumstances, it would be improper for a different judge to make substantive orders reversing a concurrent court's consent orders while the correctness of the proceedings was itself under challenge. The matter was therefore routed back to the trial court for full determination.
Legal principles established
#- Under the Constitution and the Mutunga Rules, courts should abhor technical legalism and may admit pleadings filed without prior leave where no prejudice is occasioned
Court orders
#- 1.The Amended Notice of Motion is admitted
- 2.Nairobi City County Assembly Service Board to file/serve submissions before end of 26 May 2020 (advance copy by email before end of 22 May 2020)
- 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.The Nairobi City County Assembly Service Board to file any replies/further submissions before 5 June 2020
- 5.Submissions to be in font 12, at least 1.5 spacing and not exceed 5 pages
- 6.The file to be placed before the Principal Judge on 8 June 2020 for directions on the earliest date the trial Judge may hear addresses or give further directions
- 7.Costs in the cause
- Jurisdiction invoked
- Article 23 of the Constitution (Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 invoked); not expressly stated in the ruling
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Clerk, Nairobi City County Assembly v Speaker, Nairobi City County Assembly & another;Orange Democratic Movement Party Of Kenya & 4 (Interested Parties) [2020] KEELRC 1030 (KLR)", Case Analysis (2020). Petition No. 194 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1030/eng@2020-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.