Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNotice of Motion dated 17th February 2021 (Judicial Review proceedings instituted 4th February 2021)· [2021] KEELRC 1321 (KLR)

Sheria Mtaani na Shadrack Wambui & another v Judicial Service Commission (Judicial Review E003 of 2021) [2021] KEELRC 1321 (KLR)

High Court of Kenya
2 June 2021
NMNzioki Wa Makau
2,646 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

Kenya's High Court ruled that if a judge grants leave to file a judicial review case without also pausing the decision being challenged, you cannot come back later and ask for that pause separately.

What this practically means

#

Executive summary

#
The Ex-Parte Applicants instituted judicial review proceedings on 4th February 2021 challenging the Judicial Service Commission's decision to recruit 50 Resident Magistrates on the basis of a three-year post-admission experience requirement prescribed in the Respondent's advertisement of 27th January 2021. Nduma Nderi J, in a ruling of 16th February 2021, dismissed a Preliminary Objection on jurisdiction and granted leave to file the substantive motion. The Applicants then moved by a Notice of Motion dated 17th February 2021 seeking that the leave operate as a stay of the ongoing recruitment, arguing that the 2nd Applicant, a qualified advocate with less than three years' post-admission experience, would be locked out, that the requirement was ultra vires Section 32(2) of the Judicial Service Act, and that stopping the process would save public funds. The Respondent, through the Replying Affidavit of Anne Amadi, opposed, invoking public interest, the discretion conferred by Sections 13(1)(f)(i) and 47 and the Third Schedule of the Judicial Service Act, the requirement of a strong (not merely arguable) case of unlawfulness, and the twin principles of proportionality and equality of arms. Both parties filed extensive written submissions citing numerous authorities. Nzioki Wa Makau J declined to engage with the substantive submissions, holding that the question of stay could not be revisited: the Judge who granted leave had not ordered that it operate as stay, and the motion could not be bifurcated to reopen the issue. The motion was dismissed with no order as to costs, each party bearing its own costs, with directions to follow for the disposal of the substantive judicial review.

Key legal issues

#
01

Whether leave granted in judicial review proceedings should operate as stay where the leave order itself did not so provide

Holding

The court declined the motion because the issue of stay had already been determined when leave was granted without a stay order

Reasoning

The court held that upon granting leave to commence judicial review, if no stay is given, a party cannot bifurcate the motion and seek to have stay revisited. Nduma Nderi J had granted leave on 16th February 2021 without ordering that it operate as stay, so the opportunity had passed. The court declined to entertain the various submissions, deeming them reserved for the main application, and gave directions for the substantive judicial review.

p. 5

Legal principles established

#
  • Where leave to commence judicial review is granted without an order that it operate as stay, the issue of stay cannot be revisited by bifurcating the motion

Court orders

#
  1. 1.The Notice of Motion dated 17th February 2021 seeking stay is declined/dismissed
  2. 2.Each party to bear their own costs of the motion
  3. 3.Directions for the disposal of the Judicial Review to be given immediately after delivery of the Ruling

Authorities

#

Legislation

  • Judicial Service ActSection 32(2)
  • Judicial Service ActSection 13(1)(f)(i)
  • Judicial Service ActSection 47
  • Judicial Service ActParagraph 10 of the Third Schedule
  • Civil Procedure RulesOrder 53 Rule 1(4)

Cases cited (15)

  • R vs Ashworth SA (Bureau Veritas)
    2005 2 EA 42
  • Swift Energy Distributors Gas Limited v Energy and Petroleum Regulatory Authority & another; Abdi Ali Mohamed (Interested Party)
    [2020] eKLR
  • Republic v Cabinet Secretary for Transport and Infrastructure & 4 Others ex parte Kenya Country Bus Owners Association & 8 Others
    [2014] eKLR
  • James Opiyo Wandayi v Kenya National Assembly & 2 Others
    [2016] eKLR
  • Taib A. Taib v The Minister for Local Government & Others
    [2006] eKLR
  • Republic v Kenya Revenue Authority, Commissioner for Investigation and Enforcement Department Ex parte Centrica Investments
    [2019] eKLR
  • Resley v The City Council of Nairobi
    [2006] 2 EA 311
  • R v Capital Markets Authority ex parte Joseph Mumo Kivai & Another
    [2012] eKLR
  • R (H) v Ashworth Special Hospital Authority
    1 WLR 127
  • Republic v National Hospital Insurance Fund Management Board Ex parte Patanisho Maternity and Nursing Home
    [2019] eKLR
  • Beatrice Kwamboka v Leader of Majority Party of the Nairobi County Assembly
    [2016] eKLR
  • Republic v Rosemary Wairimu Munene, Ex-Parte Applicant v Ihururu Dairy Farmers Co-operative Society Ltd, Judicial Review No.6 of 2014
  • Cecilia Karuru Ngayu v Barclays Bank of Kenya & Another
    [2016] eKLR
  • Farah Awad Gullet v CMC Motors Group Limited
    [2018] eKLR
  • Republic v Nairobi City Council & Another
    [2014] eKLR
Jurisdiction invoked
Judicial review jurisdiction under Order 53 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Sheria Mtaani na Shadrack Wambui & another v Judicial Service Commission (Judicial Review E003 of 2021) [2021] KEELRC 1321 (KLR)", Case Analysis (2021). Notice of Motion dated 17th February 2021 (Judicial Review proceedings instituted 4th February 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1321/eng@2021-06-02

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