Republic v County Assembly of Kiambu Service Board & 2 others; Muriithi (Exparte Applicant); Kiambu County Public Service Board & another (Interested Parties) (Judicial Review Application E014 of 2021) [2022] KEELRC 817 (KLR)
The bottom line
#A Kenyan court quashed Kiambu County Assembly's unilateral transfer of an employee, ordering full back-pay, reinstatement, and costs against the county.
What this practically means
#Executive summary
#Key legal issues
#Pre-trial objections on exhaustion of remedies (preliminary objection and grounds of opposition)
The court did not rule on the preliminary objection directly; it instead resolved the matter by adopting the judgment in the earlier, identical judicial review application, which had allowed identical reliefs.
The court noted the identical suit JR No. E017 of 2021 was decided by Nderi Nduma J on 16th December 2021, that the facts, evidence and cause of action were the same, and that the two matters ought to have been consolidated. Since consolidation was not ordered but both suits challenge the same decision with identical prayers, the earlier decision was binding on the issues and parties. The court therefore adopted that judgment wholesale and issued the same orders.
Consolidation of suits with common questions of law and fact
The two suits ought to have been consolidated and determined together because their orders were identical and arose from the same facts and circumstances.
Applying Stumberg v Potgeiter and the Law Society of Kenya case, the court held that common questions of law and fact justify consolidation to facilitate efficient and expeditious disposal. The parties should have brought the duplicate suit to the court's attention for consolidation; failing that, the first decision binds on the common issues.
Legal principles established
#- Where two suits with identical prayers arise from the same facts and cause of action and were not consolidated, the decision in the first suit is binding on the common issues and the matters need not be tried again.
- Consolidation is appropriate where there are common questions of law or fact rendering it desirable that the whole matters be disposed of at the same time.
Court orders
#- 1.Certiorari to quash the Respondents' unilateral decision to permanently transfer the Ex-parte Applicant from the Kiambu County Assembly to the 2nd Interested Party, remove him from the County Assembly payroll and withhold his salary and benefits
- 2.Mandamus compelling the Respondents to facilitate the Applicant to resume duties as Director of Procurement with full pay and without loss of benefits, seniority, responsibilities or office space
- 3.Prohibition restraining the Respondents from permanently transferring and/or seconding the Applicant to the 2nd Interested Party without his consent and without due process
- 4.Prohibition restraining the Respondents from advertising for, recruiting, employing, confirming or replacing the Applicant as Director of Procurement
- 5.Prohibition restraining the Respondents from frustrating or taking any action against the Applicant including re-designation, deployment or secondment affecting his contract of employment and labour rights
- 6.Declaration that the unilateral resolution and purported permanent transfer without a hearing was unreasonable, in breach of procedure, ultra vires, unlawful, Wednesbury unreasonable, unfair, unjust, in disregard of natural justice and void ab initio
- 7.Declaration that the Applicant's fundamental freedoms and labour rights have been violated
- 8.Respondents directed to pay all arrears of remuneration from the date it was stopped and to continue paying per his terms and conditions of service as Director of Procurement
- 9.Respondents to pay the Applicant's costs of the suit
- Jurisdiction invoked
- Judicial review jurisdiction; judgment notes related proceedings in Judicial Review Application No. E017 of 2021 and invokes Article 159(2)(d) and Article 48 of the Constitution in the closing order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v County Assembly of Kiambu Service Board & 2 others; Muriithi (Exparte Applicant); Kiambu County Public Service Board & another (Interested Parties) (Judicial Review Application E014 of 2021) [2022] KEELRC 817 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/817/eng@2022-02-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.