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ELRCDismissedPetition (ELRC, Nairobi) - Notice of Motion dated 1st March 2021· [2021] KEELRC 1364 (KLR)

Law Society of Kenya v Chairman, Nairobi Metropolitan Area Council & 3 others; Mary Waithigieni Chege & 2 others (Interested Parties) [2021] KEELRC 1364 (KLR)

Employment and Labour Relations Court
3 June 2021
4,445 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court kept NAMATA board members in office, ruling that even a strong case isn't enough for an injunction unless damages can't fix the harm.

What this practically means

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Executive summary

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The Law Society of Kenya filed a Notice of Motion dated 1st March 2021 in a Petition challenging the re-appointment of the 1st to 3rd Interested Parties as members of the Board of the Nairobi Metropolitan Area Transport Authority (NAMATA) by Gazette Notice No. 1714 of 5th February 2021, for a three-year term effective 10th February 2021. The Petitioner sought interim orders suspending the Gazette Notice, an injunction restraining the Respondents and Interested Parties from giving effect to it, an order for disclosure of documents leading to the re-appointment, and costs. It argued the re-appointments were unconstitutional, unlawful and unprocedural, disregarding Articles 10 and 232 on public participation, transparency and regional/ethnic inclusivity. The Respondents raised a preliminary objection on jurisdiction, contending there was no employer-employee relationship and the dispute fell outside Section 12 of the ELRC Act, and filed a replying affidavit asserting the appointments complied with the NAMATA Order, the State Corporations Act and the Mwongozo Code. The Court dismissed the preliminary objection, holding that the Karisa Chengo decision had been misapplied and that the ELRC is clothed with jurisdiction over constitutional issues arising in employment-related suits; a challenge to board appointments after a competitive recruitment is an employment matter. Applying the Giella v Cassman Brown test, the Court found a probable prima facie case but no demonstration of irreparable injury not compensable by damages, and held the balance of convenience favoured leaving the status quo intact. The motion was dismissed with no order as to costs.

Key legal issues

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01

Jurisdiction of the ELRC over the challenge to board member appointments

Holding

The Court has jurisdiction; the dispute over appointment of board members after a competitive recruitment is an employment matter within Section 12 of the ELRC Act, and the Court may determine constitutional questions arising in such a suit.

Reasoning

The Respondents' preliminary objection relied on Republic v Karisa Chengo to argue the Court lacked jurisdiction absent an employer-employee relationship. The Court held Karisa Chengo had been misapplied; it only clarified the roles of the superior courts post-2010 and did not bar the ELRC from entertaining constitutional questions incidental to employment disputes. Appointment of board members following a competitive recruitment is an employment matter, so the suit was properly before the ELRC.

p. 4
02

Whether the Applicant met the threshold for interim/conservatory relief

Holding

Although the Applicant demonstrated a prima facie case, it failed the irreparable injury and balance of convenience limbs of the Giella test, so the interim orders were refused.

Reasoning

Applying Giella v Cassman Brown, the Court accepted that the Applicant could probably succeed in overturning the appointments at the full hearing. However, the Applicant (the Law Society of Kenya) did not demonstrate that it would suffer irreparable injury not compensable by damages, and the balance of convenience tilted against interfering with the status quo. Having found damages adequate, the Court declined to grant injunctive relief and dismissed the motion.

p. 5

Legal principles established

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  • The Employment and Labour Relations Court is clothed with jurisdiction to deal with constitutional issues arising in a suit properly before it, and the Karisa Chengo decision does not bar it from doing so
  • An interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages

Court orders

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  1. 1.The Preliminary Objection dated 15th March 2021 is dismissed as it is without any merit
  2. 2.The Applicant's Notice of Motion dated 1st March 2021 is dismissed
  3. 3.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(3), 2(4), 10, 22(2)(b) & (c), 27, 41, 47, 73, 162(2)(a), 162(3), 165(3)(d)(ii), 165(6), 232, 258(2)(b) & (c), 259(1)
  • Employment and Labour Relations Court Act, 2011Section 12(1), 12(2)
  • State Corporations Act (Cap 446)Sections 6(2) and (3)
  • Nairobi Metropolitan Area Transport Authority Order, Legal Notice No. 18 of 2017Orders 8(1)(f), 8(1)(i), 8(1)(ii), 8(1)(viii), 8(2), 17(2)(a)
  • Mwongozo Code (The Code of Governance for State Corporations)Chapter 1.5

Cases cited (16)

  • Okiya Omtatah Okoiti v Kenyatta University Council & 4 Others
    Nairobi ELRC Petition No. 89 of 2015
  • Nick Githinji Ndichu v Clerk, Kiambu County Assembly & Another
    [2014] eKLR
  • Prof. Daniel N. Mugendi v Kenyatta University & 3 Others
    Civil Appeal No. 6 of 2012
  • United States International University v Attorney General (Eric Rading & COTU as Interested Parties)
    [2012] eKLR
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others
    Supreme Court Application No. 5 of 2014, [2014] eKLR
  • Nubian Rights Forum & 2 Others v Attorney-General & 6 Others; Child Welfare Society & 8 Others (Interested Parties); Centre For Intellectual Property & Information Technology (Proposed Amicus Curiae)
    Petition Nos. 56, 58 & 59 of 2019, [2019] eKLR
  • Board of Management of Uhuru Secondary School v City County Director of Education & 2 Others
    [2015] eKLR
  • Centre for Rights Education and Awareness (CREAW) & 7 Others
    High Court Petition No. 16 of 2011, Nairobi
  • Republic v Karisa Chengo & 2 Others
    [2017] eKLR
  • Kenya Council of Employment and Migration Agencies & Another v Samuel Mwongera Arachi & 2 Others
    [2015] eKLR
  • Attorney General & 2 Others v Okiya Omtata Okoiti & 14 Others
    [2020] eKLR
  • Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & Another
    Petition No. 167 of 2016, [2016] eKLR
  • Wanjiru Gikonyo v Attorney General and Others
    High Court Constitutional and Human Rights Division Petition No. 94 of 2018
  • Republic v Cabinet Secretary for Education, Science & Technology & 3 Others
    JR Case No. 280 of 2013, [2014] eKLR
  • Giella v Cassman Brown & Company Ltd
    [1973] EA 358
  • Gcaba v Minister of Safety and Security
Jurisdiction invoked
Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act, 2011

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, "Law Society of Kenya v Chairman, Nairobi Metropolitan Area Council & 3 others; Mary Waithigieni Chege & 2 others (Interested Parties) [2021] KEELRC 1364 (KLR)", Case Analysis (2021). Petition (ELRC, Nairobi) - Notice of Motion dated 1st March 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1364/eng@2021-06-03

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