Andrew Mokaya Maubi v Meru University of Science and Technology & 2 others; Bosire Monari Mwebi (Interested Party) [2021] KEELRC 1440 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the conservatory orders sought were grantable at the interlocutory stage
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
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.
Whether the petitioner established a prima facie case for the orders under the tests in Munya, CREAW and Omtatah
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
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.
Whether constitutional standing under Article 22 was properly invoked for conservatory relief under Article 23(2)(c)
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
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.
Legal principles established
#- 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
#- 1.The application dated 14th December, 2020 shall not issue as prayed
- 2.The petitioner shall be heard on the main petition and on priority basis
- 3.Hearing directions to issue instantly
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.