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ELRCDismissed· [2022] KEELRC 127 (KLR)

Republic v Cabinet Secretary, Ministry of Labour & 2 others Ex parte Central Organization of Trade Unions (K) [2022] KEELRC 127 (KLR)

Employment and Labour Relations Court
27 April 2022
3,441 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court refused to lift orders freezing NSSF board meetings, ruling that stay orders can only be undone for hidden facts, not legal arguments.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi (Maureen Onyango, J) determined a notice of motion dated 13th January 2022 by the Respondents, including the Cabinet Secretary in the Ministry of Labour and the National Social Security Fund (NSSF), seeking to vacate ex parte orders issued on 24th December 2021 in judicial review proceedings commenced by COTU (K). Those orders had been granted on leave to apply for mandamus and prohibition operating as a stay, restraining the convening of NSSF Board meetings pending appointment of COTU's second worker nominee under Section 6(d)(ii) of the NSSF Act, 2013. The Respondents argued material non-disclosure and misrepresentation of Sections 6(d)(ii), 8(2) and 11(2) of the Act, and cited public interest in the management of approximately Kshs.285 billion of taxpayers' funds. COTU countered that the application was not properly brought under Order 53 Rule 4, that the jurisdiction to set aside such orders is sparingly exercised, and that no material non-disclosure was demonstrated. The court identified one issue: whether valid grounds existed to set aside the orders of 24th December 2021. Applying the Aga Khan Education Service and Republic v Vice Chancellor Moi University decisions, the court held that the recognised grounds are non-disclosure of material facts, concealment of material documents and misrepresentation, none of which was demonstrated; alleged misrepresentation of the law is distinct from non-disclosure of material facts. The application was dismissed with costs in the cause, and directions were flagged for speedy disposal of the main motion, to which the Respondents had not yet responded.

Key legal issues

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01

Whether the orders of 24th December 2021 (leave operating as stay) should be vacated for material non-disclosure

Holding

The application was dismissed; no material non-disclosure, concealment or misrepresentation of fact was demonstrated, and alleged misrepresentation of the law does not amount to non-disclosure of material facts

Reasoning

The court found that the grounds in the notice of motion were not supported or expounded in the supporting affidavit of the Cabinet Secretary, which dealt with irrelevant matters such as regional and ethnic considerations of nominees and the qualifications of nominees without showing how the impugned nominee failed the statutory criteria. The only specific allegation was misrepresentation of provisions of the NSSF Act, which is a question of law and distinct from non-disclosure of material facts. The English authorities and the Aga Khan Education Service case caution that the jurisdiction to set aside leave is sparingly exercised and is not available merely because the respondent may have a powerful case on the merits.

p. 4
02

The exercise of the court's jurisdiction under Order 53 Rule 4 to vacate leave operating as a stay

Holding

The court has jurisdiction to vacate such orders but exercises it sparingly and only on clear-cut grounds

Reasoning

Relying on Aga Khan Education Service Kenya v Republic Ex Parte Ali Seif and the English authorities cited therein, the court held that although leave granted ex parte can be set aside on application, the jurisdiction is very limited and should not be invoked routinely merely because the applicant may face great difficulties at the final hearing. None of the recognised grounds was demonstrated on the facts.

p. 5

Legal principles established

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  • Setting aside leave granted ex parte to operate as stay is a limited jurisdiction exercised very sparingly and only on very clear-cut cases
  • Grounds for setting aside stay orders issued upon grant of leave are non-disclosure of material facts, concealment of material documents or misrepresentation
  • In ex parte proceedings there must be full and frank disclosure of facts known to the applicant

Court orders

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  1. 1.The Respondents/Applicants' application dated 13th January 2022 seeking to vacate the orders of 24th December 2021 is dismissed
  2. 2.Costs of the application shall be in the cause
  3. 3.Directions to be given for disposal of the main motion to ensure quick disposal of the matter

Authorities

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Legislation

  • National Social Security Fund ActSections 6(d)(i) and (ii), 8(2), 11(2), 11(3), 16(d)(i) and (ii), 20(1)(a) and (b)
  • Finance ActSection 41 (amending Section 51 of the NSSF Act)
  • Civil Procedure RulesOrder 53 Rule 1(4), Order 53 Rule 4, Order 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 48, 50(1), 159(2)(d)

Cases cited (9)

  • Owners of the Motor Vessel "Lillian" v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
    [2014] eKLR
  • Aga Khan Education Service Kenya v Republic Ex Parte Ali Seif & 3 Others
    [2004] eKLR
  • Republic v Vice Chancellor Moi University & 3 others Ex-Parte Benjamin J. Gikenyi Magare
    [2018] eKLR
  • R v Secretary of State for the Home Department, ex p. BEGUM
    (1989) 1 Admin LR 110, 112F
  • R v Crown Prosecution Service ex p. Hogg
    (1994) 6 Admin LR 778
  • R v Secretary of State for the Home Department ex p. Chinnoy
    (1992) 4 Admin LR 457
  • R v Customs & Excise Commissioners, ex p. Eurotunnel Plc
    [1957] CLC 392
  • R v Environment Agency, ex p. Leam
    [1998] Env LR D1
Jurisdiction invoked
Order 53 Rules 1 and 4 of the Civil Procedure Rules; the court's inherent jurisdiction to set aside ex parte orders ex debito justitiae

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, "Republic v Cabinet Secretary, Ministry of Labour & 2 others Ex parte Central Organization of Trade Unions (K) [2022] KEELRC 127 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/127/eng@2022-04-27

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