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ELRCDismissedRuling on Notice of Motion dated 14th December, 2020 (petition number not stated in judgment)· [2021] KEELRC 1440 (KLR)

Andrew Mokaya Maubi v Meru University of Science and Technology & 2 others; Bosire Monari Mwebi (Interested Party) [2021] KEELRC 1440 (KLR)

Employment and Labour Relations Court of Kenya
25 February 2021
2,570 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to temporarily stop a university council chairperson's removal because the order requested would have effectively reinstated him before the full case was heard.

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 (M. Mbaru, J) on the petitioner's notice of motion dated 14th December 2020 seeking conservatory orders restraining his removal as chairperson of the council of a public university and staying Gazette Notice No.10184 of 2020 which revoked his appointment and appointed the interested party in his place. The petitioner, appointed chairperson by Gazette Notice No.2375 of 20th March 2020 pursuant to section 36(1)(a) of the Universities Act, contended that the revocation, founded on an EACC report that he had defrauded Vision Institute of Professionals and faced criminal charges in Nairobi Chief Magistrates Court Criminal Case No.466 of 2019, was done without a hearing contrary to Articles 47, 50 and fair administrative action. The 2nd respondent, Cabinet Secretary for Education Prof. George Magoha, justified the revocation on integrity grounds. The court applied the framework in Gatirau Peter Munya and Platinum Distillers, holding that at the interlocutory stage it makes no definitive findings, and that the orders sought would effectively reinstate the petitioner and revert the parties to the pre-revocation position - relief amounting to reinstatement and specific performance regulated by sections 12 of the Employment and Labour Relations Act and 49(4) of the Employment Act - thereby conflating interlocutory and final issues. The application was declined; the petitioner is to have the main petition heard on priority basis, with costs to abide the petition.

Key legal issues

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01

Whether the conservatory orders sought were grantable at the interlocutory stage

Holding

No - the orders, if granted, would effect reinstatement of the petitioner and stay of a Gazette Notice, thereby granting final relief prematurely and conflating issues reserved for the main petition

Reasoning

The court accepted the Gatirau Peter Munya framework for conservatory orders but found that the orders sought would restore the petitioner to the chairperson position and revert the parties to the pre-revocation position, contrary to the Munya principles. Reinstatement and specific performance are regulated remedies under section 12 of the Employment and Labour Relations Act read with section 49(4) of the Employment Act, and cannot be granted as conservatory orders.

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02

Whether the petitioner established a prima facie case for the orders under the tests in Munya, CREAW and Omtatah

Holding

The court confined itself to evaluating the material without definitive findings and found the orders themselves contrary to the framework for conservatory relief, while directing priority hearing of the main petition

Reasoning

Relying on Platinum Distillers, the court's limited jurisdiction was to examine the material placed before it and the pleadings to determine prima facie case and prejudice. Having found that the very orders sought would be inappropriate at the interlocutory stage, the court declined them but ensured the petitioner would be heard promptly on the merits, noting he moved the court immediately upon revocation.

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03

Whether constitutional standing under Article 22 was properly invoked for conservatory relief under Article 23(2)(c)

Holding

The court noted the LSK case requiring an applicant to plead and establish on a prima facie basis denial, violation or threat to rights in the Bill of Rights

Reasoning

The court referenced the Law Society of Kenya decision on the requirements for conservatory orders under Article 23(2)(c), linking it to Article 22 standing. It emphasized the employer-employee context and held it imperative that the main petition be heard on the merits rather than resolved at the interlocutory stage.

p. 4

Legal principles established

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  • At the interlocutory stage the court makes no definitive finding of fact or law; it examines the material to determine whether a prima facie case warrants conservatory orders and whether denial would cause prejudice
  • Conservatory orders are granted on the inherent merit of a case bearing in mind public interest, constitutional values and proportionate magnitudes, not on private-law considerations of irreparable harm or high probability of success

Court orders

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  1. 1.The application dated 14th December, 2020 shall not issue as prayed
  2. 2.The petitioner shall be heard on the main petition and on priority basis
  3. 3.Hearing directions to issue instantly
  4. 4.Costs shall abide the petition
Jurisdiction invoked
Articles 48 and 159 of the Constitution, 2010; sections 12, 20 and 29 of the Employment and Labour Relations Court Act; Rule 17 of the Employment and Labour Relations Court (Procedure) Rules, 2016

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, "Andrew Mokaya Maubi v Meru University of Science and Technology & 2 others; Bosire Monari Mwebi (Interested Party) [2021] KEELRC 1440 (KLR)", Case Analysis (2021). Ruling on Notice of Motion dated 14th December, 2020 (petition number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1440/eng@2021-02-25

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