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ELRCDismissedNot stated in the judgment (Notice of Motion dated 18th February 2021 in an ELRC Petition)· [2021] KEELRC 1351 (KLR)

Nehemiah Kipkorir Terer & 3 others v National Police Service Commission & 2 others [2021] KEELRC 1351 (KLR)

Employment and Labour Relations Court
29 June 2021
4,056 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court refused to halt police Cadet Inspector recruitment because it was already too far advanced, though the main discrimination case continues.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi (Nzioki wa Makau J) on a Notice of Motion dated 18th February 2021 in which Graduate Police Constables sought a temporary injunction restraining the National Police Service Commission and the National Police Service from advertising, interviewing or recruiting Cadet Inspectors. The Petitioners, holding university degrees and already serving, contended that recruiting 300 Cadet Inspectors from the general public, subject to a 30-year age limit and without first filling positions internally, discriminated against them contrary to Articles 27 and 41(1) of the Constitution and Regulation 19(2) of the Recruitment Regulations. The Respondents countered that serving officers were free to apply (776 did), that recruitment and promotion are distinct statutory processes, that internal remedies were not exhausted, and that the recruitment was already advanced with successful candidates in training, rendering an injunction futile. The court applied the Giella v Cassman Brown principles, as explained in Mrao Ltd and Nguruman, and the authorities on futility (Eric V.J. Makokha; Nicholas Mahimu). Holding that it ought not make orders in vain and that the application did not meet the threshold for interlocutory relief, the court dismissed the Notice of Motion and directed that costs abide the outcome of the Petition, which is to proceed to a full hearing on the merits.

Key legal issues

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01

Prima facie case for interlocutory injunction

Holding

The Petitioners failed to demonstrate a prima facie case with probability of success sufficient to justify stopping the recruitment exercise.

Reasoning

Applying Giella v Cassman Brown as restated in Nguruman Limited, the applicant must show an apparently infringed right and probability of success. The Respondents showed that serving officers including the Petitioners were free to apply and were processed; some Petitioners never applied for promotion or did not qualify; hence no apparent infringement of a right was demonstrated on the material presented.

p. 4
02

Futility of injunctive relief given the stage of the recruitment

Holding

Because successful candidates were already undergoing training, an injunction would be ineffective in practical terms, and the Court declined to make orders in vain.

Reasoning

Relying on Eric V.J. Makokha v Lawrence Sagini and Nicholas Mahimu, the court held it cannot stultify itself by granting orders which cannot be enforced or would have no effect as the action had already been done. The recruitment was overtaken by events, with successful candidates already in training, making interim restraint futile and better addressed at the full hearing.

p. 4
03

Exhaustion of internal remedies

Holding

The Respondents argued, without the court needing to decide finally at this stage, that the Petitioners had not used the complaint and appeal mechanisms under the Recruitment and Promotion Regulations.

Reasoning

The 1st Respondent relied on Benard Murage v FinServe Africa Limited to submit that where an alternative statutory remedy exists it should be pursued first, noting Regulation 21 of the Recruitment Regulations and Regulation 14 of the Promotion Regulations provide complaint and appeal mechanisms that the Petitioners had not invoked. The court did not make a final finding, choosing instead to hear the matter on the merits.

p. 3

Legal principles established

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  • A court should not make orders which cannot be enforced or which would be rendered nugatory by events that have already occurred; where interim relief would be futile, the proper course is to hear the suit on the merits.

Court orders

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  1. 1.Dismissal of the Petitioners' Notice of Motion application dated 18th February 2021
  2. 2.Order that costs shall abide the outcome of the Petition
Jurisdiction invoked
Article 23(3) of the Constitution of Kenya (authority to grant appropriate reliefs, including injunction, in enforcement of the Bill of Rights)

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, "Nehemiah Kipkorir Terer & 3 others v National Police Service Commission & 2 others [2021] KEELRC 1351 (KLR)", Case Analysis (2021). Not stated in the judgment (Notice of Motion dated 18th February 2021 in an ELRC Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1351/eng@2021-06-29

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