Lolmingani & another v Lelelit & another (Employment and Labour Relations Petition E019 of 2022) [2023] KEELRC 280 (KLR)
The bottom line
#A Kenyan court refused to lift orders protecting suspended county board members, ruling that you cannot remove public officials by simply hiring their replacements.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petitioners' non-disclosure of their suspension, pending criminal charges and non-taking of oath of office warranted setting aside the ex-parte conservatory orders
No - the undisclosed facts were immaterial; had they been disclosed the court would still have issued the conservatory orders to preserve the status quo
The court accepted that the Petitioners had failed to disclose the suspension, criminal charges and absence of oath of office. However, applying the materiality test, it held that the Petitioners had been lawfully appointed and never removed; vacating the orders would countenance their removal without due process and create double appointments. The facts therefore would not have changed the outcome, so the application failed.
Whether the Respondents could lawfully replace the Petitioners by fresh recruitment
No - recruitment in respect of occupied offices is not a lawful method of removal; removal requires due process or a valid court order
The court found the Petitioners were lawfully appointed in 2019 and remain in office on suspension at half-pay. No removal proceedings or court orders for removal exist. Facilitating replacement through recruitment would amount to unlawful removal without a hearing, wasting public resources through double occupancy of the same offices.
Legal principles established
#- For ex-parte interim orders to be set aside for non-disclosure, the withheld facts must be so relevant, germane and pertinent that their disclosure would have altered the court's decision
- A person may not be removed from public office by appointing a replacement; removal must follow due process or a valid court order
Court orders
#- 1.The Notice of Motion dated December 8, 2022 by the 1st Respondent seeking to vacate the ex-parte conservatory orders be and is hereby dismissed
- 2.Costs of the application be in the petition
- Jurisdiction invoked
- Article 22 & 23 of the Constitution - petition under the Constitution of Kenya (Protection of Fundamental Rights and Freedoms) Practice and Procedure Rules; interim relief under Rule 25 of those Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lolmingani & another v Lelelit & another (Employment and Labour Relations Petition E019 of 2022) [2023] KEELRC 280 (KLR)", Case Analysis (2023). Constitutional Petition dated November 21, 2022 (Samburu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/280/eng@2023-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.