Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedPetition dated 24th February 2022 (Nairobi ELRC)· [2023] KEELRC 880 (KLR)

Otieno v Export Processing Zones Authority & 2 others (Petition E034 of 2022) [2023] KEELRC 880 (KLR)

Employment and Labour Relations Court
5 April 2023
4,837 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

#

A Kenyan court dismissed a duplicate CEO appointment petition because an earlier case covered the same dispute, and ordered the petitioner to pay costs.

What this practically means

#

Executive summary

#
The Petitioner applied for the position of Chief Executive Officer of the Export Processing Zones Authority, was shortlisted, interviewed and on 12th August 2021 informed by the 1st Respondent that he was successful subject to confirmation by the Cabinet Secretary (2nd Respondent). The Cabinet Secretary declined to act on the Board's recommendation, citing irregularities in the recruitment process, an audit was ordered and the position was re-advertised. The Petitioner sought declarations that the re-advertisement and fresh recruitment violated his rights to fair labour practices and fair administrative action under Articles 41(1) and 47, together with certiorari, prohibition and mandamus compelling his appointment. The Respondents opposed, arguing the petition was sub judice Petition No E133 of 2021 filed by Okiya Omtatah Okoiti, which challenged the failure to appoint the Petitioner, that the Petitioner lacked locus standi, that no legitimate expectation could arise from an irregular process, and that the Cabinet Secretary was not bound to rubber-stamp the Board's nomination. The court framed four issues and held the petition sub judice, noting the earlier petition had been determined on 29th July 2022 with directions that the Petitioner's appointment be gazetted. The court declined to consider the remaining issues as academic, dismissed the petition in its entirety as a waste of judicial time, and ordered the Petitioner to pay the costs, while leaving him free to enforce the judgment in Petition E133 of 2021.

Key legal issues

#
01

Whether the petition is sub judice Petition No E133 of 2021

Holding

Yes - the petition was dismissed as sub judice and a waste of judicial time

Reasoning

The court found the same subject matter was in issue in the earlier Okiya Omtatah petition, that parties were essentially the same given the public interest character of both suits, and that the orders sought in the earlier petition could not be granted without impact on the present one. The judgment in E133 of 2021 had already been delivered directing the Petitioner's appointment to be gazetted, rendering this petition an unnecessary duplication.

p. 8
02

Whether the Petitioner had locus standi and legitimate expectation

Holding

The court declined to determine these issues once sub judice was established

Reasoning

Having found the petition sub judice, the court held that remaining issues on locus standi, legitimate expectation and fair labour practices had become academic. It did not make findings on whether the Petitioner's contingent interest conferred standing or whether the letter of 12th August 2021 founded a legitimate expectation, leaving the earlier petition's judgment as the operative determination.

p. 8
03

Whether the Cabinet Secretary could decline the Board's recommendation

Holding

Raised but not determined; the 2nd Respondent contended the CS was not bound to rubber-stamp the nomination

Reasoning

The 2nd Respondent argued that the CS lawfully declined the recommendation because the resolutions lacked details on candidates, that an audit revealed irregularities in the recruitment, and that no appointment letter had issued to the Petitioner. The court did not adjudicate these contentions because the sub judice finding disposed of the petition.

p. 4

Legal principles established

#
  • The sub judice rule bars a later suit over the same subject matter where the conditions under section 6 of the Civil Procedure Act are met, and the substance rather than the form of the suit determines sub judice
  • Filing a multiplicity of suits over the same subject matter amounts to forum shopping and an abuse of court process deserving of disdain

Court orders

#
  1. 1.The petition dated 24th February 2022 is dismissed in its entirety for being sub judice a similar case heard and determined in Petition No E133 of 2021
  2. 2.The Petitioner is at liberty to follow legal avenues to ensure the judgment in Petition E133 of 2021 is implemented
  3. 3.The Petitioner to pay the costs of this petition

Authorities

#

Legislation

  • Constitution of Kenya 2010Article 41(1)
  • Constitution of Kenya 2010Article 47
  • Constitution of Kenya 2010Article 152(2)
  • Constitution of Kenya 2010Article 22
  • Constitution of Kenya 2010Article 159(2)(d)
  • Constitution of Kenya 2010Article 48
  • Export Processing Zones Act No. 12 of 1990sections 3 and 6
  • Civil Procedure Actsection 6
  • Employment and Labour Relations Court Actsection 12
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2014not specified

Cases cited (13)

  • Munawar Shuttle v County Government of Kilifi & 2 Others
    2018 eKLR
  • Khalef El Busaidy vs Commissioner of Lands & 2 others
    2002 eKLR
  • Communications Commission of Kenya and 5 Others vs Royal Media Services and 5 others
    (2014) eKLR
  • Kenya County Government Workers' Union vs County Government of Nyeri & Another
    (2015) eKLR
  • Benard Murage vs Fine Serve Africa Ltd & 3 others
    2015 eKLR
  • Parag Bhabwanjigi Savani vs Jitu Tribhovanshai Savani and 2 Others
    2017 eKLR
  • Okiya Omtatah Okoiti vs the Board Export Process Authority & 3 Others
    ELRC Petition No E133 of 2021
  • Darren Mutinda v Kisii University, Kisii University Council, Fredrick Wanyama, C.S. Ministry of Education & Attorney General
    [2022] eKLR
  • Kenya National Human Rights vs the Attorney General, Independent Electoral and Boundaries Commission and 16 others
  • Republic vs Paul Kihara Kariuki, Attorney General & 2 Others Ex parte Law Society of Kenya
    [2020] eKLR
  • Thiba Min Hydro Co. Ltd vs Josphat Karu Ndwiga
  • S vs Mhlungu
    1995 (3) SA 867 (CC)
  • Ashwander vs Tennessee Valley Authority
    297 U.S 288 347 (1936)
Jurisdiction invoked
Article 22 and Article 41(1) and 47 of the Constitution of Kenya 2010; section 12 of the Employment and Labour Relations Court Act was contested as the basis of the court's jurisdiction

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Otieno v Export Processing Zones Authority & 2 others (Petition E034 of 2022) [2023] KEELRC 880 (KLR)", Case Analysis (2023). Petition dated 24th February 2022 (Nairobi ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/880/eng@2023-04-05

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