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ELRCDismissedJudicial Review proceedings arising from Ex-parte Chamber Summons application dated 11th November 2021

Republic v Ag Clerk of Nairobi City County Assembly & another Ex-parte Robert Khamala Situma & 18 others [2021] KEELRC 292 (KLR)

Employment and Labour Relations Court
30 November 2021
OKOcharo Kebira
5,254 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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The Employment and Labour Relations Court dismissed attempts to stop a judicial review case against the Nairobi County Assembly Board, with costs.

What this practically means

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Executive summary

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The Ex-parte Applicants obtained leave on 12th November 2021 to institute judicial review proceedings (mandamus, certiorari and prohibition) against decisions of the Nairobi City County Assembly Service Board arising from a Justice and Legal Affairs Committee report recommending reversal of certain staff promotions. The 1st and 2nd Respondents then applied to set aside the leave and stay, to stay the proceedings pending ELRC Petition No. E.170 of 2021, or in the alternative to strike out the suit as sub judice, an abuse of process and forum shopping, alleging the Applicants had withdrawn an earlier petition only after interim orders were declined and had failed to disclose that petition. The Respondents argued that a constitutional petition could not be withdrawn merely by notice without a hearing under Rule 27 of the Mutunga Rules. The Ex-parte Applicants countered that the petition had been withdrawn before service, that the matters were different, and that judicial review proceedings are sui generis and immune from the Civil Procedure Act. The court framed the application around prayers for stay, striking out and costs. It held that Order 53 contemplates two independent proceedings with different life spans: the leave-stage proceedings, which were concluded and spent when leave was granted, and the substantive motion. Since nothing remained pending, there was nothing that could be stayed or struck out as sub judice the petition, and the court declined to venture into the merits of the withdrawal and non-disclosure arguments. The Respondents' application was dismissed with costs, with liberty to raise the issues in the substantive motion once filed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the proceedings can be stayed pending hearing of ELRC Petition No. E.170 of 2021
  2. 2.Whether the suit should be struck out for being sub judice and an abuse of court process / forum shopping
  3. 3.Whether costs should be borne by the respondents

Key legal issues

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01

Whether the leave-stage proceedings could be stayed or struck out as sub judice Petition No. E.170 of 2021

Holding

The court held that the leave-stage proceedings were concluded and spent upon grant of leave, so nothing remains pending that could be stayed or struck out; the sub judice argument therefore fails.

Reasoning

The court observed that Order 53 contemplates two independent forms of proceedings: the chamber summons for leave and the substantive notice of motion. The respondents' application attacked the leave-stage proceedings, which ended when leave was granted. Whatever concerns respondents had should be raised in the substantive motion once filed.

p. 7
02

Requirements for invoking the sub judice doctrine under section 6 of the Civil Procedure Act

Holding

The court restated that two or more suits must be alive for section 6 to apply, and whether a suit is sub judice is determined by substance rather than form.

Reasoning

The court set out the stringent requirements for the doctrine, citing Panalpina Airflo, and noted that the doctrine prevents concurrent jurisdiction courts from reaching conflicting judgments on the same matter. Even assuming the petition was pending, nothing in the leave-stage proceedings could be sub judice it.

p. 7

Legal principles established

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  • Leave-stage proceedings under Order 53 Rules 1 and 2 conclude upon grant of leave; they are independent of the substantive judicial review notice of motion

Court orders

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  1. 1.The 1st and 2nd Respondents' application dated 15th November 2021 is dismissed with costs
  2. 2.Leave granted to the Ex-parte Applicants on 12th November 2021 remains undisturbed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

OK
majority

Wrote the judgment

Jurisdiction invoked
Order 53 of the Civil Procedure Rules

Relief refused

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Stay of proceedings pending ELRC Petition No. E.170 of 2021

The leave-stage proceedings under Order 53 Rules 1 and 2 had concluded; nothing pending to be stayed

p. 7

Striking out of the suit as an abuse of process

No pending proceedings exist that can be struck out

p. 7

Costs

The application is dismissed with costs to the Ex-parte Applicants

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Consequently, I find the application bereft of merit and it is hereby dismissed with costs.
p. 7disposition - dismissal of the respondents' application
There are no proceedings pending that can be stayed or struck out.
p. 7leave-stage proceedings spent
It is imperative to state that the proceedings are independent of each and have different life spans.
p. 7independence of leave-stage and substantive judicial review proceedings
Imperative to state that the Respondents'/ Applicants' application raises very vital issues which in my view would only be raised appropriately in the Judicial Review proceedings, that Ex Parte Applicants are to institute under Order 53 Rule 3 of the Civil Procedure Rules.
p. 7proper forum for respondents' complaints

Issues in the judgment

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minor

The judgment inconsistently refers to the same case as 'Panalpina Airflo' and 'Panalphina Airflo', and Petition 157 is referred to variously as 2020 and 2021

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 Ag Clerk of Nairobi City County Assembly & another Ex-parte Robert Khamala Situma & 18 others [2021] KEELRC 292 (KLR)", Case Analysis (2021). Judicial Review proceedings arising from Ex-parte Chamber Summons application dated 11th November 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/292/eng@2021-11-30

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