Nehemiah Kipkorir Terer & 3 others v National Police Service Commission & 2 others [2021] KEELRC 1351 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Prima facie case for interlocutory injunction
The Petitioners failed to demonstrate a prima facie case with probability of success sufficient to justify stopping the recruitment exercise.
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.
Futility of injunctive relief given the stage of the recruitment
Because successful candidates were already undergoing training, an injunction would be ineffective in practical terms, and the Court declined to make orders in vain.
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.
Exhaustion of internal remedies
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.
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.
Legal principles established
#- 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
#- 1.Dismissal of the Petitioners' Notice of Motion application dated 18th February 2021
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.