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ELRCDismissedJudicial Review Cause No. E005 of 2021· [2021] KEELRC 296 (KLR)

Republic v Cabinet Secretary Ministry of Finance & National Treasury & 2 others Ex Parte Commission for Human Rights and Justice (CHRJ) ; John Mwangemi (Interested Party) [2021] KEELRC 296 (KLR)

Employment and Labour Relations Court
26 November 2021
BOByram Ongaya
983 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 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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The 3rd respondent, through Cootow & Associates, filed a notice of preliminary objection on 21.07.2021 seeking to defeat judicial review proceedings brought by the ex-parte applicant (through Mkan & Company Advocates). It argued three grounds: that the leave granted on 07.07.2021 lapsed because the applicant failed to serve all documents on record by 09.07.2021 as ordered; that without continuing leave the court lacked jurisdiction; and that the applicant was in contempt of the 07.07.2021 order and therefore had no audience. The 3rd respondent relied on the replying affidavit of John Kinyanjui Turasha and an endorsement on the served motion noting the absence of the verifying affidavit and statutory statement. The applicant relied on the affidavit of licensed process server Michael I. Otieno asserting that service was effected as ordered. The court found the questions of what was served on 8th July 2021 to be matters of disputed affidavit evidence that could not be resolved without cross-examination, so the objection, being founded on disputed rather than undisputed facts, was misconceived. The court further held that contempt cannot be established by way of preliminary objection, that contempt findings require prescribed procedural and substantive safeguards, and that deploying a preliminary objection on a disputed fact to found contempt liability was an abuse of process. It also rejected the submission that the leave was conditional on service, noting the order contained no lapse provision. The preliminary objection was dismissed with costs in the cause, and the parties were directed to take steps towards the expeditious hearing of the substantive motion.

Key legal issues

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01

Whether a preliminary objection may rest on disputed facts

Holding

It cannot; the objection was misconceived because service of the documents on 8th July 2021 was a matter of disputed affidavit evidence.

Reasoning

The court weighed the process server Michael I. Otieno's affidavit against the replying affidavit of John Kinyanjui Turasha. Without cross-examination of either deponent it was impossible to say who was telling the truth about what was served on 8th July 2021. Since a valid preliminary objection must rest on undisputed facts, an objection turning on contested service cannot succeed and must fail.

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02

Whether contempt may be raised and determined via preliminary objection

Holding

No; contempt findings are serious and must follow prescribed procedural and substantive safeguards, not a preliminary objection.

Reasoning

The 3rd respondent sought to have the ex-parte applicant denied audience for contempt arising from alleged incomplete service. The court held that a finding of culpability for contempt is an extremely serious undertaking and must be undertaken within the safeguards of written law and applicable rules of procedure; using a preliminary objection, and resting it on disputed service facts, amounted to an abuse of court process.

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03

Whether non-compliance with a service direction caused the leave to lapse

Holding

No; the order of 07.07.2021 did not stipulate that failure to effect service by the deadline would cause the leave to lapse.

Reasoning

The court examined the terms of the order of 07.07.2021, which required filing and service within set timelines and service of all documents by close of 09.07.2021, but contained no provision deeming the leave lapsed upon default. The submission that continued existence of the leave was conditional on service was therefore misconceived and misleading.

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Legal principles established

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  • A valid preliminary objection must be based on undisputed facts; one founded on disputed facts is misconceived.
  • Contempt of court cannot be established through a preliminary objection; culpability must be determined within prescribed procedural and substantive safeguards.
  • Leave to apply for judicial review does not lapse by operation of a service deadline unless the order expressly provides so.

Court orders

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  1. 1.The notice of preliminary objection dated and filed on 21.07.2021 is dismissed with costs in the cause
  2. 2.The parties to take steps towards the expeditious hearing and determination of the substantive notice of motion

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 53 Rule 1
Jurisdiction invoked
Order 53 of the Civil Procedure Rules, 2010 (judicial review proceedings; leave granted on 07.07.2021)

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 Cabinet Secretary Ministry of Finance & National Treasury & 2 others Ex Parte Commission for Human Rights and Justice (CHRJ) ; John Mwangemi (Interested Party) [2021] KEELRC 296 (KLR)", Case Analysis (2021). Judicial Review Cause No. E005 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/296/eng@2021-11-26

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