Lukale Moses Sande v Governor, County of Kakamega & 3 others [2022] KEELRC 575 (KLR)

Following its own ruling in Oliver Mukhebi, the court found that to grant a temporary injunction it must first have jurisdiction over the subject matter, being the appeal on the recruitment exercise. Under Article 22 there must be a petition before the court alleging rights violations; none existed. Rule 17(1),(5) and (6) of the ELRC Procedure Rules presuppose a suit in which interlocutory relief is sought. The PSC is the forum with jurisdiction, so the application was also sub judice.

The Applicant relied on conservatory orders issued in Bungoma ELRC Petition No. E009 of 2021 to argue discriminatory treatment. The court noted that order was granted ex parte before hearing the opponent, and a ruling was pending after both parties were heard. The court instead followed its own precedent in Oliver Mukhebi and declined to deviate from it.

Relying on Wilson Kaberia Nkunja and SFA v AOA, the court held that among the principles for granting conservatory orders is whether the petition would be rendered nugatory absent the orders, and that granting orders in the manner sought would amount to granting final substantive relief in an interlocutory application. The applicant had filed no substantive petition before this court.

The court held the suit was not res judicata because it was not heard on merit, but found itself functus officio on the jurisdictional question since Radido J had already ruled the court lacked jurisdiction under Section 87 of the Public Service Commission Act, and the Applicant had since lodged his appeal before the PSC, the right forum. The application therefore failed for want of jurisdiction.