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ELRCDismissedPetition No. 97 of 2020 (interim application dated 25th November 2020, amended 4th January 2021)· [2022] KEELRC 329 (KLR)

Roselyne Okumbe v Board of Trustees, Water Sector Trust Fund & another; Ismail Fahmy M. Shaiye & another (Interested parties) [2022] KEELRC 329 (KLR)

Employment and Labour Relations Court
17 March 2022
MNMathews N. Nduma
2,077 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment and Labour Relations Court refused to suspend a state fund CEO's re-appointment, ruling the case duplicated an earlier failed challenge and was overtaken by events.

What this practically means

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Executive summary

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The applicant, Florence Kanyua Lichoro, moved the Employment and Labour Relations Court by a notice of motion dated 25th November 2020 (amended 4th January 2021) seeking interim conservatory orders in a petition challenging the re-appointment of Ismael Fahmy M. Shaiye as Chief Executive Officer of the Water Sector Trust Fund. She sought prohibition of the re-appointment, an order compelling competitive recruitment of a substantive CEO with an acting appointment for a maximum of six months, an order barring the 1st interested party from acting as CEO, and quashing of the 2nd and 3rd respondents' decision of 12th November 2020 recommending his extension. The 1st interested party opposed via grounds of opposition, arguing res judicata based on Okiya Omtatah Okoiti's earlier dismissed application, and that the matter was overtaken by events given his re-appointment for a further three-year term. The 1st respondent also opposed, asserting the 1st interested party had served only one term under the Water Sector Trust Fund established by the Water Act, 2016. The court framed two issues: whether the applicant satisfied the requirements for conservatory orders, and whether the matter was overtaken by events or res judicata. Applying the Supreme Court's test in Gatirau Peter Munya, the court found no prima facie case, since the CEO could not have served two terms under the post-2017 entity. It further held the application moot, the re-appointment already having occurred, and res judicata in light of the ruling by Hon. Byram Ongaya J of 16th October 2020 in substantially identical proceedings. The application was dismissed with costs.

Key legal issues

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01

Whether a prima facie case with probability of success was established for conservatory orders

Holding

No prima facie case established; the 1st interested party could not have served two three-year terms in the Water Sector Trust Fund established in 2017 under the Water Act, 2016.

Reasoning

The court found the 1st respondent was established under the Water Act, 2016 effective 21st April 2017, replacing the Water Services Trust Fund under the repealed Water Act, 2002. Since the 1st interested party's renewed contract commenced on 10th November 2017 under the new entity, he had served only one term, contradicting the applicant's claim of two terms. The applicant therefore failed the threshold in Gatirau Peter Munya v Dickson Mwenda Kithinji for conservatory orders in public-law matters.

p. 3
02

Whether the application is moot and res judicata

Holding

Yes - the orders were overtaken by events (re-appointment had already occurred) and the issues are res judicata, having been substantially in issue and dismissed in Okiya Omtatah Okoiti v Ismail Fahmy M. Shaiye, Petition No. 97 of 2020 (ruling of 16th October 2020).

Reasoning

The court compared the present application with the interlocutory application in Petition No. 97 of 2020 by Okiya Omtatah Okoiti, finding the same subject matter and substantially the same parties, with only the petitioner differing as a public interest litigant. That application had been dismissed by Hon. Byram Ongaya J on 16th October 2020. The re-appointment of the 1st interested party on 13th July 2020 / 10th November 2020 also rendered the interim orders moot; lawfulness of the appointment is a matter for the full hearing.

p. 4

Legal principles established

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  • Conservatory orders bear a public law connotation and should be granted on the inherent merit of a case bearing in mind the public interest and constitutional values, not on private-law interlocutory injunction considerations.

Court orders

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  1. 1.The application dated 25th November 2020 as amended on 4th January 2021 is dismissed.
  2. 2.Costs of the application awarded to the respondents.
Jurisdiction invoked
Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (petition under Bill of Rights enforcement jurisdiction)

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, "Roselyne Okumbe v Board of Trustees, Water Sector Trust Fund & another; Ismail Fahmy M. Shaiye & another (Interested parties) [2022] KEELRC 329 (KLR)", Case Analysis (2022). Petition No. 97 of 2020 (interim application dated 25th November 2020, amended 4th January 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/329/eng@2022-03-17

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