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ELRCStruck OutJudicial Review Motion dated 2nd April 2020· [2020] KEELRC 1926 (KLR)

Republic v Chairman of Council TUC & 3 others Ex parte Moes Ekal [2020] KEELRC 1926 (KLR)

High Court of Kenya
4 December 2020
2,556 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court struck out a judicial review case after the respondents' own lawyer filed submissions supporting it, calling the about-turn a conspiracy to pervert justice.

What this practically means

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Executive summary

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The applicant, a student and employee of Turkana University College (TUC) relying on Article 258 of the Constitution for locus standi, moved the court by a Motion dated 2nd April 2020 seeking certiorari to quash the appointment of the 4th respondent as Acting Deputy Principal (Administration, Finance and Planning) of TUC and the Notice to Show Cause issued against the Principal, Prof. Thomas Ekamais Akuja, as well as prohibition restraining the respondents from acting illegally and barring the 4th respondent from the office. The applicant contended that the Council had in 2018 resolved to send back seconded MMUST staff, that the 4th respondent's employment dispute was pending before the ELRC (Eldoret ELRC No. 256 of 2018), and that the Principal was victimised for resisting an unlawful reinstatement. The 4th respondent, swearing for all respondents, opposed the Motion, arguing the secondment and Council ratification were lawful, that the matter was in part time-barred and misjoined against MMUST, and that the relief concerning the Principal was an abuse of process given his pending ELRC suit. In an unusual turn, counsel for the 1st and 3rd respondents filed submissions supporting the Motion. The court held that a party is bound by its pleadings and that these contradictory submissions amounted to a conspiracy to pervert the course of justice. Invoking its summary jurisdiction, the court struck out the Motion on 4th December 2020. No costs order was pronounced.

Key legal issues

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01

Effect of respondents' counsel filing submissions supporting the applicant's Motion

Holding

The submissions were a fundamental departure from the replying affidavit and unacceptable; the court invoked its summary jurisdiction and struck out the Motion

Reasoning

The court held that submissions exist to persuade the court on the facts as pleaded, and that a party is bound by its pleadings. The 1st and 3rd respondents had opposed the Motion through the 4th respondent's replying affidavit, yet their counsel filed submissions supporting it. The court treated this contradiction as a conspiracy to pervert the course of justice, and the only suitable remedy was to strike out the Motion.

p. 4
02

Authority of the 4th respondent to swear the replying affidavit on behalf of the other respondents

Holding

The court accepted the 4th respondent's assertion of authority since the 1st and 2nd respondents never disavowed it

Reasoning

The 4th respondent deponed that he had the authority of all respondents to swear the replying affidavit in opposition to the Motion. The court noted that the 1st and 2nd respondents did not at any point disavow that deposition, thereby accepting the affidavit as the respondents' opposition to the Motion.

p. 4

Legal principles established

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  • A party is bound by their pleadings and a significant departure from them is not permitted
  • Counsel filing submissions that contradict their own client's pleadings amounts to a conspiracy to pervert the course of justice which the court will not permit

Court orders

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  1. 1.The applicant's Motion dated 2nd April 2020 struck out under the summary jurisdiction of the Court

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 258
  • Constitution of Kenya, 2010Article 159
  • Universities ActNo. 42 of 2012
  • Civil Procedure RulesOrder 53 rule 2
Jurisdiction invoked
Article 258 of the Constitution (locus standi to institute proceedings for constitutional infringement); judicial review jurisdiction under Order 53 of the Civil Procedure Rules

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, "Republic v Chairman of Council TUC & 3 others Ex parte Moes Ekal [2020] KEELRC 1926 (KLR)", Case Analysis (2020). Judicial Review Motion dated 2nd April 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1926/eng@2020-12-04

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