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ELRCDismissedCause No 14 of 2020· [2021] KEELRC 1207 (KLR)

Kenya Union of Pre-Primary Education Teachers v Secretary, Laikipia County Public Service Board & another [2021] KEELRC 1207 (KLR)

Employment and Labour Relations Court (presumed from coram and party roles: Claimant Union and Respondents)
19 July 2021
DMD.K. Njagi Marete
1,330 words in judgment
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The bottom line

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A Kenyan court dismissed a technical objection to a stay application, confirming that procedural technicalities will not derail justice under Article 159(2)(d).

What this practically means

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Executive summary

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This first-instance ruling by the Employment and Labour Relations Court at Nyeri (D.K. Njagi Marete, J.) determined a preliminary objection dated 30th April 2021 raised by the Claimant against the Respondents' application dated 26/4/2021 seeking a stay of taxation proceedings on the Claimant's Bill of Costs. The objection advanced four grounds: that the application offended the Judicature Act and the High Court (Practice and Procedure) Rules, Part 1 Rule 3 for having been filed during High Court vacation without grounding on the vacation rules; that it offended Order 42 rule 6 of the Civil Procedure Rules; that the court lacked jurisdiction under Section 6 of the Civil Procedure Act because a valid Notice of Appeal had initiated appellate process at the Court of Appeal; and that the application was statute-barred. The Claimant relied on Walter Kundert v Warda Mohamed Shali to argue that the Civil Procedure Rules provide for virtually every procedural situation. The Respondents countered that the application was filed outside any gazetted vacation, that the objection was not a pure point of law under Mukhisa Biscuits v West End Distributors as explained in Republic v Eldoret Water & Sanitation Company, and that Article 159(2)(d) of the Constitution and the High Court (Organisation and Administration) Rules, 2016 demand that justice be administered without undue regard to procedural technicalities. The court found the objection not grounded on sound legal principles, held it would require factual analysis of the vacation timelines and therefore was not a pure point of law, and dismissed the preliminary objection with each party bearing their own costs of the application.

Key legal issues

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01

Whether the preliminary objection is a pure point of law

Holding

The objection is not a pure point of law because affirming the pleaded position on the High Court vacation would require analysis of evidence and facts.

Reasoning

The court accepted the Respondents' submissions, applying Mukhisa Biscuits and Republic v Eldoret Water & Sanitation, that a preliminary objection cannot be sustained where facts must be ascertained. Determining the timing of the High Court vacation would require factual inquiry, so the objection fails the demurrer test.

p. 3
02

Whether the objection is based on procedural technicalities that should be disregarded

Holding

The objection borders on technicalities and is not grounded on sound legal principles; the court declines to entertain it in light of Article 159(2)(d).

Reasoning

Relying on Article 159(2)(d) of the Constitution and the High Court (Organisation and Administration) Rules, 2016, Part 1, the court held that proceedings should not be defeated by technical non-compliance. The Claimant's technical objections to the timing and grounding of the application do not render the application invalid.

p. 3

Legal principles established

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  • A preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained or if the exercise of judicial discretion is sought.
  • Under Article 159(2)(d) of the Constitution and the High Court (Organisation and Administration) Rules, 2016, justice is to be administered without undue regard to procedural technicalities.

Court orders

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  1. 1.The preliminary objection is dismissed
  2. 2.Each party to bear their own costs of the application

Authorities

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Legislation

  • Judicature ActCap 8 Laws of Kenya
  • High Court (Practice and Procedure) RulesPart 1 Rule 3
  • Civil Procedure RulesOrder 42 rule 6; Order 51 rule 1
  • Civil Procedure ActSections 1A, 1B, 3A, 6
  • Constitution of Kenya, 2010Article 159(1), 159(2)(d)
  • High Court (Organisation and Administration) Rules, 2016Part 1 (rules 1-4)
  • Advocate's Remuneration OrderNot specified

Cases cited (3)

  • Walter Kundert & another v Warda Mohamed Shali
    Civil Appeal No. 117 of 2001
  • Mukhisa Biscuits Manufacturing Co. Ltd v West End Distributors Limited
    (1969) EA 696
  • Republic v Eldoret Water & Sanitation Company Limited Exparte Booker Onyango & 2 others
    (2007) eKLR
Jurisdiction invoked
Not expressly invoked; the application arises in a reference/stay application concerning a Bill of Costs under the Advocate's Remuneration Order

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, "Kenya Union of Pre-Primary Education Teachers v Secretary, Laikipia County Public Service Board & another [2021] KEELRC 1207 (KLR)", Case Analysis (2021). Cause No 14 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1207/eng@2021-07-19

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