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ELRCAllowedNot stated in judgment (ELRC Petition, Eldoret)· [2021] KEELRC 2370 (KLR)

Bismarck Ptiyos Nguriakada & 4 others v Deputy County Commissioner, Pokot Central Sub- County - County & 4 others [2021] KEELRC 2370 (KLR)

Employment and Labour Relations Court
1 October 2021
JAJ. N. Abuodha
1,002 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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An Eldoret court suspended the appointment of an Assistant Chief because he was allegedly not a local resident, after the government failed to defend the case.

What this practically means

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Executive summary

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By a Motion dated 9th March 2021, petitioners led by Bismarck Priyos Nguriakade, shortlisted candidates and residents of Chepserun sub-location, sought conservatory orders and prohibitory injunction restraining the 4th Respondent from resuming or assuming the office of Assistant Chief, Chepserun sub-location, and interim orders suspending the implementation of the 1st Respondent's decision of 12th February 2021 appointing him as Assistant Chief II. They contended that the advertisement required candidates to be residents of the sub-location, that the 4th Respondent was a resident of Cheptulel location, Nyorpotwo sub-location, and that his appointment denied qualified local candidates and contravened Article 27(1) of the Constitution. The respondents entered appearance through the Attorney General on 6th April 2021 but filed no Replying Affidavit, Grounds of Opposition or submissions despite service and directions. Abuodha J therefore treated the matter as undefended and granted the orders as prayed: prohibitory injunction and conservatory orders barring the 4th Respondent from resuming, performing or assuming the duties of the office, and interim suspension of the appointment, in each case pending the hearing and determination of the application and petition. No costs order was recorded. The orders are interlocutory and preserve the status quo pending trial.

Key legal issues

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01

Undefended interlocutory application

Holding

The court granted the conservatory orders and interim suspension sought because the respondents, though served and having entered appearance through the Attorney General, filed no Replying Affidavit, Grounds of Opposition or submissions.

Reasoning

The respondents entered appearance through the Attorney General on 6th April 2021 but filed no response within the ordered 14 days. At the mention on 25th April 2021 only petitioners' counsel appeared, and the court directed filing of submissions, which the respondents also ignored. Concluding the matter was undefended, the court deemed the unopposed averments sufficient and granted the Motion as prayed.

p. 2
02

Residency requirement for appointment as Assistant Chief

Holding

The petitioners allege the 4th Respondent is not a resident of Chepserun sub-location as required by the advertisement and the National Government Administration Act, and that his appointment contravenes Article 27(1); these unchallenged allegations underpin the interim relief.

Reasoning

The supporting affidavit depones that the advertisement required the Assistant Chief to be a resident of Chepserun sub-location, that the 4th Respondent is instead a resident of Cheptulel location, Nyorpotwo sub-location, and that his appointment denies qualified local candidates opportunity contrary to Article 27(1). The respondents never controverted these claims, justifying suspension of the appointment pending full hearing.

p. 2

Legal principles established

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  • Where respondents fail to file a response despite being served and directed to do so, the application becomes undefended and the court may grant the orders as prayed

Court orders

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  1. 1.Conservatory orders and/or prohibitory injunction prohibiting the 4th Respondent from resuming office and performing the duties of Assistant Chief, Chepserum sub-location, pending the hearing and determination of the application
  2. 2.Interim order suspending the implementation of the 1st Respondent's decision of 12/02/2021 appointing the 4th Respondent as Assistant Chief II for Chepserun sub-location, pending the hearing and determination of the application
  3. 3.Conservatory orders restraining and/or prohibitory injunction prohibiting the 4th Respondent from assuming the office of Assistant Chief, Chepserun sub-location, pending the hearing and determination of the Petition
  4. 4.Interim order suspending the implementation of the 1st Respondent's decision appointing the 4th Respondent as Assistant Chief II for Chepserun sub-location, pending the hearing and determination of the Petition

Authorities

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Legislation

  • Constitution of KenyaArticle 27(1)
  • National Government Administration ActNot specified (referred to as 'National Government Act')
Jurisdiction invoked
Constitution of Kenya, 2010 (petition invoking Article 27(1); interlocutory Motion under civil procedure rules)

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, "Bismarck Ptiyos Nguriakada & 4 others v Deputy County Commissioner, Pokot Central Sub- County - County & 4 others [2021] KEELRC 2370 (KLR)", Case Analysis (2021). Not stated in judgment (ELRC Petition, Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2370/eng@2021-10-01

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