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ELRCOtherNot stated in extract· [2022] KEELRC 871 (KLR)

Republic v Clerk, County Assembly of Homa Bay & another [2022] KEELRC 871 (KLR)

Employment and Labour Relations Court
9 February 2022
RSRadido Stephen
1,150 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed ex-parte injunctions last only 14 days, but court recesses pause that countdown.

What this practically means

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Executive summary

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This is an interlocutory Ruling of the Employment and Labour Relations Court at Kisumu (Radido Stephen, J) arising from judicial review proceedings brought by Hon Elizabeth Ayoo, Speaker of Homa Bay County Assembly, who had on 9 December 2021 obtained leave to apply for certiorari and prohibition against a Notice of Intention to remove her from office, with leave operating as a stay. A fresh Notice of Intention dated 14 December 2021 prompted her to seek contempt and injunctive orders, and on 20 December 2021 the Duty Judge in Bungoma granted ex-parte injunctions restraining named members of the County Assembly from acting on the Notice and restraining Hon Jeff Ongoro from chairing the County Assembly Service Board, each until the application was heard and determined. The Respondents moved to vacate the orders on two grounds: that the indefinite duration of the ex-parte injunction breached the 14-day limit in Order 40 Rule 4 of the Civil Procedure Rules (and Rule 17(4) of the ELRC Rules, 2016), and that the 14 December 2021 Notice was not covered by the leave and stay. The Court agreed the injunction should have lasted only 14 days, but held that computation of time is stayed during the court recess, so the period ran from 14 January 2022 to 28 January 2022, rendering the Respondents' Motion premature. Noting the similarity between the two Notices and the need to preserve the status quo pending the substantive Motion, the Court amended the injunction to operate pending the inter-partes hearing, awarded costs in the cause, and directed that further orders would issue immediately after delivery of the Ruling.

Key legal issues

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01

Duration of ex-parte injunctions

Holding

The indefinite ex-parte injunction was impermissible; it should have lasted 14 days, but the period is computed from the end of the court recess

Reasoning

The Court held that Rule 17(4) of the ELRC (Procedure) Rules, 2016 caps ex-parte injunctions at 14 days, similar to Order 40 Rule 4(2) of the Civil Procedure Rules. However, because the orders were issued during the December recess which ended around 14 January 2022, the 14 days technically began running on 14 January 2022 and would lapse on 28 January 2022, meaning the respondents moved prematurely. Balancing this and the need to preserve the status quo pending the substantive Motion, the Court amended rather than vacated the orders.

p. 3
02

Scope of the stay granted with leave

Holding

The Notice of 14 December 2021 was materially similar to the Notice of 2 December 2021 covered by the stay, justifying preservation of the status quo

Reasoning

The Court noted it had ordered that leave granted on 9 December 2021 operate as a stay of the Notice of Intended Motion for removal, and that the 14 December 2021 Notice was 'eerily similar' in content and grounds to the 2 December 2021 Notice, save for the substitution of the intended mover. Given the pendency of the substantive Motion filed 14 December 2021, the Court preserved the injunction in qualified form pending inter-partes hearing.

p. 3

Legal principles established

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  • The shelf life of an ex-parte injunction is 14 days under Rule 17(4) of the ELRC (Procedure) Rules, 2016 (mirrored in Order 40 Rule 4(2) of the Civil Procedure Rules)
  • Computation of time under procedural rules is stayed during the court recess; the 14-day period ran from the end of the recess on 14 January 2022

Court orders

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  1. 1.The injunctive orders issued on 20 December 2021 are amended by vacating the words 'until this application is heard and determined' and substituting the words 'pending the inter-partes hearing of the Motion and/or further orders of the Court'
  2. 2.Costs of the Motion in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 4
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 17(4)

Cases cited (1)

  • Director of Public Prosecutions v Justus Mwendwa Kthenge & 2 Ors
    (2016) eKLR
Jurisdiction invoked
Judicial review jurisdiction under leave granted on 9 December 2021 (orders of certiorari and prohibition); Employment and Labour Relations Court (Procedure) Rules, 2016

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 Clerk, County Assembly of Homa Bay & another [2022] KEELRC 871 (KLR)", Case Analysis (2022). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/871/eng@2022-02-09

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