Cheruiyot v Board of Trustees, Commodities Fund. & 2 others; Ndungu (Interested Party) (Employment and Labour Relations Claim E050 of 2022) [2022] KEELRC 1425 (KLR)
The bottom line
#Kenya's High Court halted the Commodities Fund's recruitment of a new Managing Trustee, letting the ousted official's replacement continue acting while her constitutional challenge proceeds.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case
The applicant established an arguable prima facie case on the powers of the Cabinet Secretary to appoint/renew the Managing Trustee and on the applicability of Mwongozo
The court held that the applicant need only show an arguable case disclosing serious constitutional issues, not a case that must succeed. The crux was the 2nd respondent's powers under the Crops Act and the applicability of Mwongozo, raising arguable issues fit for trial.
Nugatory risk/prejudice
Absent conservatory orders the recruitment could be concluded, eroding the substratum of the petition
Applications for the position had closed on 15 March 2022; without orders the 1st respondent could appoint a substantive holder, and the substratum of the main suit - the office of Managing Trustee - would be lost, causing prejudice to the applicant.
Public interest
Public interest favoured suspending the recruitment process since the appointment is to a public office funded from public coffers
The Commodities Fund is a state agency funded from public coffers; the Managing Trustee holds a public office; recruitment costs and any damages would come from public funds. With an acting officer in place, no prejudice would befall the respondents if the orders issued.
Legal principles established
#- Principles for granting conservatory orders: prima facie case with likelihood of success, substratum of the petition not to be rendered nugatory, and public interest
Court orders
#- 1.Pending the hearing and determination of the petition, the respondents are restrained from further proceeding with the recruitment process for the position of the Managing Trustee of the Commodities Fund
- 2.The interested party shall continue to perform the duties of the Managing Trustee of the Commodities Fund in an acting capacity pending the hearing and determination of the petition
- 3.The petition shall be canvassed by written submissions
- 4.Respondents/interested party granted leave to file further responses and supplementary documents within 7 days
- 5.Petitioner to file supplementary responses and written submissions within 7 days of service
- 6.Respondents and interested party to file written submissions within 7 days of service
- 7.A convenient mention date to issue to confirm compliance and take a judgment date
- Jurisdiction invoked
- Articles 22, 23, 165(3)(d) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cheruiyot v Board of Trustees, Commodities Fund. & 2 others; Ndungu (Interested Party) (Employment and Labour Relations Claim E050 of 2022) [2022] KEELRC 1425 (KLR)", Case Analysis (2022). Not stated in the judgment (Petition/Motion dated 14th March 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1425/eng@2022-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.