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ELRCAllowedPetition No. E170 of 2021· [2022] KEELRC 884 (KLR)

Pauline Akuku & 3 others v Speaker, Nairobi City County Assembly & 4 others [2022] KEELRC 884 (KLR)

Employment and Labour Relations Court
8 February 2022
JGJacob Gakeri
2,917 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed workers to withdraw their constitutional petition against the Nairobi County Assembly, confirming anyone can still sue afresh on the same issues.

What this practically means

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Executive summary

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The Petitioners, staff of the Nairobi City County Assembly alleging contravention of various constitutional provisions arising from a County Assembly Report and Resolution, filed Petition No. E170 of 2021 with a notice of motion dated 30th October 2021 seeking interim reliefs. Before the motion could be heard, their counsel notified the Court by a notice of withdrawal dated 4th November 2021 of the intention to withdraw both the petition and the motion. At the hearing on 16th December 2021, counsel for the Petitioners pressed for withdrawal, arguing that neither the petition nor the motion had been served on the Respondents. Counsel for the Respondents, already on record, invoked Rule 27 of the Mutunga Rules, submitting that withdrawal of a constitutional petition requires a hearing before the Court determines its juridical effects. A third counsel, Mrs. Kamau, purported to appear for three petitioners opposed to the withdrawal but was not on record. The Court framed two issues: whether the withdrawal was merited, and whether Mrs. Kamau was properly before the Court. It held that constitutional petitions are governed by Rule 27 of the Mutunga Rules rather than Order 25 Rule 1 of the Civil Procedure Rules, and that a petitioner's right to withdraw is circumscribed by that rule. Since the Petitioners had duly notified the Court and no objection or submissions were on record, the Court allowed the withdrawal with no orders as to costs. It held Mrs. Kamau was not properly on record, being a stranger to the proceedings. The juridical effect of the withdrawal is that any interested party remains at liberty to file a fresh petition or other action, as the issues were never determined on the merits.

Key legal issues

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01

Whether the notice of withdrawal of the petition and notice of motion was procedurally sound and merited

Holding

Yes - the court allowed the withdrawal. Although the notice was grounded on Order 25 Rule 1 of the Civil Procedure Rules, which governs ordinary civil suits, the correct regime is Rule 27 of the Mutunga Rules; the Petitioners notified the court of their intention to withdraw, there was no objection on record, and the court was constrained to allow the withdrawal.

Reasoning

The court noted that constitutional petitions are governed by the Mutunga Rules, under which withdrawal requires notice to the court and respondent and the court, after hearing the parties, determines the juridical effects. Citing the Court of Appeal in Arigi and Ogola J in Abdalla, it held that a petitioner's right to withdraw is circumscribed by Rule 27. Here the Petitioners notified the court and applied for withdrawal on 16th December 2021; no party filed submissions or objection, so the court allowed the withdrawal.

p. 4
02

Whether Mrs. Kamau was properly before the Court on behalf of three petitioners opposing the withdrawal

Holding

No - she was not properly on record. She had neither filed a notice of appointment nor a notice of change of advocates at the time of the hearing and made no application for leave; she was for all intents and purposes a stranger, and her later notice of appointment (15th December 2021) could not cure this.

Reasoning

Relying on Order 9 Rule 5 of the Civil Procedure Rules, the court held that until a notice of change of advocate is filed and served, the former advocate remains advocate of the party. Mrs. Kamau appeared on 16th December 2021 without being on record, sought no indulgence from the court or counsel on record, and filed no submissions. Applying Salat on the sanctity of procedural rules, the court found her participation improper.

p. 4
03

The juridical effect of the withdrawal

Holding

Since the petition and motion were not heard and determined on merit, the withdrawal does not preclude any interested party from filing a fresh petition or other action on the same issues.

Reasoning

The court determined that because the matters were withdrawn before hearing, the issues raised were never canvassed or determined on their merits. Consequently no res judicata arises, and any person interested in litigating the issues arising from the Nairobi City County Assembly Report and Resolution may institute fresh proceedings.

p. 4

Legal principles established

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  • Withdrawal of a constitutional petition is governed by Rule 27 of the Mutunga Rules, not Order 25 Rule 1 of the Civil Procedure Rules, and takes effect only after the court hears the parties and determines the juridical effects of the withdrawal.
  • A withdrawal effected in accordance with the applicable regime leaves issues unlitigated; a fresh suit on the same issues is not barred.
  • An advocate who has not filed a notice of appointment or change is not properly on record and is in effect a stranger to the proceedings.

Court orders

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  1. 1.The withdrawal of the petition and the notice of motion dated 30th October 2021 was allowed
  2. 2.No orders as to costs
  3. 3.Any party interested or desirous of litigating the issues is at liberty to file a petition or any other action as it may deem necessary

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 3, 10, 19, 20, 21, 22, 23, 28, 33, 35, 41, 47, 48, 50, 73, 75, 159(2)(d), 165, 229, 232, 236, 258
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) (Practice and Procedure) Rules, 2013 (Mutunga Rules)Rules 4, 5, 10, 23, 24, 27
  • County Assembly Service ActSections 4, 36, 41, 42 (No. 24 of 2017)
  • Fair Administrative Actions ActSections 4, 5, 6, 12 (No. 4 of 2015)
  • Public Officer Ethics ActSections 8, 9, 10, 11, 12, 36 (No. 4 of 2003)
  • Employment Act2007
  • Civil Procedure RulesOrder 25 Rule 1; Order 9 Rule 5; Order 21 Rule 1
  • Civil Procedure ActSections 1A, 1B (Chapter 21, Laws of Kenya)

Cases cited (4)

  • Kofinaf Company Limited & another v Nahashon Ngige Nyagah & 20 others
    [2017] eKLR
  • Harry John Paul Arigi & 2 others v Board, Kenya Ports Authority & 2 others
    [2016] eKLR
  • Abdalla Salim Abdalla & 2 others v Office of Director of Public Prosecutions & 3 others
    [2020] eKLR
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others
    [2013] eKLR
Jurisdiction invoked
Articles 22, 23, 41, 47 and 50 of the Constitution of Kenya, 2010 and Rules 4, 23 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

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, "Pauline Akuku & 3 others v Speaker, Nairobi City County Assembly & 4 others [2022] KEELRC 884 (KLR)", Case Analysis (2022). Petition No. E170 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/884/eng@2022-02-08

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