Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in the extract· [2021] KEELRC 1547 (KLR)

Republic v Attorney General & another;Kembi Gitura (Interested Party) [2021] KEELRC 1547 (KLR)

Employment and Labour Relations Court
21 April 2021
NMNzioki wa Makau
677 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

A Kenyan employment court refused to halt a Gazette Notice because the applicant should have asked for a stay when first filing the case.

What this practically means

#

Executive summary

#
This was an oral motion by the Ex Parte Applicant seeking a stay to halt an impugned Gazette Notice, the subject of an ongoing judicial review before the Employment and Labour Relations Court. Counsel for the Applicant (Mr. Kamotho) argued that the interests of justice required a stay to halt the alleged illegality in an appointment process, invoking Section 16 of the Employment and Labour Relations Court Act as the source of the Court's power to issue orders necessary to meet the ends of justice. The 1st Respondent (Miss Oyugi) opposed, relying on previously determined High Court Petitions (Nos. 284 and 253 of 2018) and contending the appointment was lawful. The 2nd Respondent (Mr. Githu Muigai SC) argued that in judicial review, stay ought to be sought at the leave stage, that the appointment had already taken place with the Interested Party in office, and that status quo should be maintained. The Court (Nzioki wa Makau J) noted that Nduma Nderi J., in granting leave on 19th March 2021, had not ordered that the leave operate as stay, and held that in judicial review the failure to grant stay cannot be revived by a subsequent motion. Although Section 16 confers wide remedial powers, the Judge was not persuaded it was in the interests of justice to disturb the status quo, since quashing orders could right any wrong at the conclusion of the case. The oral motion for stay was denied with no order as to costs.

Key legal issues

#
01

Whether the Court can grant a stay of an impugned Gazette Notice by way of a subsequent motion where leave to commence judicial review was granted without stay

Holding

The application for stay was denied; stay should have been sought at the leave stage and the matter can be remedied by quashing orders at the conclusion of the judicial review

Reasoning

The Court noted that Nduma Nderi J. granted leave to commence proceedings on 19th March 2021 but did not order that the leave operate as stay. In judicial review practice, once leave is granted without an order that it operate as stay, the failure cannot be cured by a later interlocutory motion. Although Section 16 of the ELRC Act confers wide power to issue orders to meet the ends of justice, the Judge was not persuaded it was in the interests of justice to disturb the status quo, since quashing the Gazette Notice at the end of the case would right any wrong.

p. 2

Legal principles established

#
  • In Judicial Review, failure to grant stay at the leave stage cannot be remedied by a subsequent motion
  • Judicial Review is concerned with the process of decision-making, not its merits

Court orders

#
  1. 1.Motion seeking stay of the impugned Gazette Notice made orally before the Court denied
  2. 2.No order as to costs

Authorities

#

Legislation

  • Employment and Labour Relations Court ActSection 16

Cases cited (1)

  • The Senate of the Republic of Kenya & 4 Others v Speaker of the National Assembly & Another; Attorney General & Others as Interested Parties
    Petition No. 284 of 2018 and Petition No. 253 of 2018
Jurisdiction invoked
Section 16 of the Employment and Labour Relations Court Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Republic v Attorney General & another;Kembi Gitura (Interested Party) [2021] KEELRC 1547 (KLR)", Case Analysis (2021). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1547/eng@2021-04-21

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