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ELRCOtherPetition No. 194 of 2019· [2020] KEELRC 1030 (KLR)

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)

Employment and Labour Relations Court
22 May 2020
1,686 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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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

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Executive summary

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This is a directions/ruling delivered by Radido J in the Employment and Labour Relations Court at Nairobi on 22 May 2020 in a petition between the Clerk of the Nairobi City County Assembly (Petitioner) and the Speaker and the County Assembly Service Board (Respondents), with two political parties and three Members as interested parties. The dispute centred on consent orders adopted by Makau J on 30 October 2019 allowing the Clerk to resume work and sustaining conservatory orders issued on 28 October 2019. The Service Board filed successive urgent motions, first on 14 April 2020 and then on 4 May 2020, seeking the discharge, variation, review or setting aside of those consent orders, followed by an Amended Notice of Motion which added an order directing county and national financial officials to recognise a person appointed by the Board as Accounting Officer/Procedural Officer. The Board orally applied on 19 May 2020 for admission of the amended motion and ex tempore interim interdicts. The Court admitted the amended motion despite opposition grounded on Rule 18 of the 2013 Rules, reasoning that the Rules abhor technical legalism and no compensable prejudice was shown. The Court declined the ex tempore interdicts, holding that applications to reverse consent orders made by a concurrent court should be determined by the trial judge, who remained in station on leave, after all parties are heard. Directions on filing submissions were issued and costs were left in the cause.

Key legal issues

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01

Admission of an amended pleading in a constitutional petition without prior leave

Holding

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

Reasoning

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.

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02

Whether a different judge should grant ex tempore orders reversing consent orders made by a concurrent judge

Holding

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

Reasoning

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.

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Legal principles established

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  • 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

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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 before end of 26 May 2020 (advance copy by email before end of 22 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 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. 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
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

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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 (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.