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ELRCOtherCause (ELRC, Busia) — Issue in Dispute filed 11 September 2020· [2021] KEELRC 1544 (KLR)

Namenya Daniel Naburi v County Assembly Service Board, Busia County & another [2021] KEELRC 1544 (KLR)

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

The bottom line

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A Kenyan employment court refused to restart a dismissed worker's case, saying he must first let the Public Service Commission finish hearing his appeal.

What this practically means

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Executive summary

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Namenya Daniel Naburi sued the County Assembly Service Board and the Public Service Commission on 11 September 2020 over alleged unfair and unprocedural termination of employment, an unfair disciplinary hearing, withholding of salaries and dues, failure to remit statutory deductions and failure to issue a certificate of service. The Board responded that the Cause was sub judice because the applicant had appealed to the Commission, and res judicata by reference to consolidated Petitions Nos. 23 and 42 of 2017 dismissed on 23 May 2019, and moved the Court by a Motion filed 4 December 2020 on those pleas. On 28 January 2021 the Court stayed proceedings pending the Commission's determination of the applicant's appeal. The applicant then moved by Motion filed 17 February 2021 seeking review and setting aside of the stay, and an order admitting his late-filed replying affidavit and submissions, attributing the delay to misdiarisation in his advocates' office. The Board opposed, contending the applicant was aware of the hearing date, that no timelines for affidavits had been set, and that misdiarisation was not a ground for review. The Court held it would be premature to keep the Cause running while the Commission appeal was alive, the stay having been granted to facilitate exhaustion of alternative dispute resolution mechanisms under Article 159 of the Constitution and section 15 of the Court's constitutive Act; the applicant's remedy for Commission delay lay in the Court's supervisory jurisdiction. The Court declined to review the stay, admitted the replying affidavit and submissions, directed that the Cause remain stayed until the Commission determined the appeal or further directions, and made costs orders in the cause.

Key legal issues

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01

Whether to lift the stay of proceedings pending the Commission's determination of the applicant's appeal

Holding

The Court declined to lift the stay; keeping the Cause running while the appeal is alive before the Commission would be premature

Reasoning

The applicant had appealed his dismissal to the Public Service Commission, which had not determined the appeal. The stay was granted to enable exhaustion of alternative dispute resolution mechanisms recognised under Article 159 of the Constitution and section 15 of the Court's constitutive Act. If the Commission delays, the remedy lies in the Court's supervisory jurisdiction to compel it to act, not in review of the stay order.

p. 2
02

Whether to admit the late-filed replying affidavit and submissions

Holding

Admitted, because the application they respond to is still pending and no prejudice would arise

Reasoning

The replying affidavit and submissions were filed late, attributed by the applicant to misdiarisation in the advocates' office. The Board opposed admission, arguing there were no court-set timelines and that casualness should not be rewarded. The Court held that because the substance of the Board's 4 December 2020 application was still pending, admission of the affidavit and submissions was appropriate.

p. 2

Legal principles established

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  • A party who considers that the Public Service Commission has delayed in determining an appeal should invoke the Court's supervisory jurisdiction to compel it to perform its appellate role within a reasonable time, rather than seeking to lift a stay granted pending that appeal
  • Exhaustion of alternative dispute resolution mechanisms is recognised in Article 159 of the Constitution and section 15 of the Court's constitutive Act

Court orders

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  1. 1.The application to review and/or set aside the order staying the Cause issued on 28 January 2021 is declined
  2. 2.The applicant's replying affidavit and submissions in response to the Board's application filed on 4 December 2020 are allowed
  3. 3.The Cause and any pending application remain stayed until the Public Service Commission determines the applicant's appeal or further Court directions
  4. 4.Costs in the cause
Jurisdiction invoked
Article 162(2) of the Constitution / Employment and Labour Relations Court Act (Court's constitutive Act, s 15 referenced for ADR); Employment and Labour Relations Court (Procedure) Rules on review

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, "Namenya Daniel Naburi v County Assembly Service Board, Busia County & another [2021] KEELRC 1544 (KLR)", Case Analysis (2021). Cause (ELRC, Busia) — Issue in Dispute filed 11 September 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1544/eng@2021-06-16

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