Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedBungoma High Court Judicial Review Application (Chamber Summons dated 13th December 2022)· [2023] KEELRC 888 (KLR)

Simwah & another v Kakamega County Assembly Service Board; Akosi (Interested Party) (Judicial Review E005 of 2022) [2023] KEELRC 888 (KLR)

High Court of Kenya
14 April 2023
2,528 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A Bungoma court dismissed a challenge to a county board's 45-day forced leave, ruling that judicial review cannot fix decisions that have already taken effect.

What this practically means

#

Executive summary

#
The Exparte Applicants, employees of the Kakamega County Assembly Service Board, sought leave to apply for judicial review prerogative orders of prohibition and certiorari against a letter dated 9th December 2022 directing them to proceed on 45 days' accumulated annual leave while the Board investigated alleged malpractices, contending that it amounted to an indefinite suspension or forced leave contrary to section 28 of the Employment Act and Articles 10, 27, 41 and 47 of the Constitution. They also sought that leave operate as a stay. The Respondents and the interested party opposed, arguing the application was overtaken by events since the leave expired on 9th February 2023 and the applicants were thereafter on interdiction pursuant to letters of 8th February 2023, a new and unpleaded cause of action. The court, citing the Court of Appeal decision in Kenya National Examination Council v Republic Exparte Geoffrey Gathenji Njoroge, held that prohibition cannot lie against a decision already made and effected. It found that the leave letter imposed a definite 45-day compulsory leave, not an indefinite suspension, and the period had lapsed. Relying on the Supreme Court's doctrine of judicial restraint in Julius Kariuki Mate v Wambora, it declined to restrain the Board from exercising its statutory role. The court held that any remedy for the implemented decision would lie in damages or declaratory orders, unavailable in judicial review. The chamber summons was dismissed with each party bearing its own costs.

Key legal issues

#
01

Whether the letter dated 9th December 2022 amounted to an indefinite suspension capable of being quashed by certiorari

Holding

No; it placed the applicants on a definite 45-day compulsory leave which had expired

Reasoning

The court found the letter gave a definite 45-day period which lapsed on 9th February 2023. Although the leave was compulsory since the applicants did not apply for it and investigations were to run during it, it was not an indefinite suspension. Certiorari therefore could not issue, and the application was overtaken by events.

p. 5
02

Whether prohibition could issue in respect of the letter dated 9th December 2022

Holding

No; the decision was already made and effected, and prohibition lies only against contemplated decisions

Reasoning

Relying on the Court of Appeal decision in Kenya National Examination Council v Republic Exparte Geoffrey Gathenji Njoroge, the court held that the applicants had already proceeded on the leave and the 45 days had expired. The subsequent interdiction letters raised a new, unpleaded cause of action over which the court lacked jurisdiction.

p. 5
03

Whether the subsequent interdiction letters of 8th February 2023 could be brought within the application

Holding

No; they constitute a new cause of action not pleaded

Reasoning

The court held that its jurisdiction was confined to the impugned letter of 9th December 2022 and the prayers sought, parties being bound by their pleadings. The interdiction letters were a fresh decision requiring a separate challenge. Damages or declaratory relief for any unlawfulness are not available in judicial review.

p. 5

Legal principles established

#
  • An order of prohibition can only be issued to prevent the making of a contemplated decision, not to quash or prohibit a decision already made
  • A court cannot go beyond the relief sought in the statement
  • Courts should exercise judicial restraint and not interfere with ongoing processes of other arms of government, including county assemblies exercising statutory roles
  • Where an implemented decision is found unlawful, the remedy lies in damages or declaratory orders, which are not available in judicial review proceedings

Court orders

#
  1. 1.The Exparte Chamber summons application dated 13th December 2022 is dismissed
  2. 2.Each Party to bear own costs

Authorities

#

Legislation

  • Civil Procedure Rules, 2010Order 53 Rule (1), (2) & (4)
  • Employment ActSection 28
  • Constitution of Kenya, 2010Articles 10, 27, 41 and 47

Cases cited (5)

  • Republic -vs- County Council of Kitale & Another Exparte Kondo & 57 Others
    Mombasa HCMA NO. 384 of 1996
  • Wambati Simiyu Merit -vs- Music Company Right Society of Kenya
    Petition No 11 of 2018
  • Republic v Judicial Service Commission Exparte Pareno
    [2004] eKLR
  • Kenya National Examination Council v Republic Exparte Geoffrey Gathenji Njoroge & 9 Others
    [1997] eKLR
  • Julius Kariuki Mate & Another v Mattin Nyaga Wambora & Another
    2017 eKLR
Jurisdiction invoked
Judicial review jurisdiction under the Constitution and statute (Orders of the Civil Procedure Rules 2010 on applications for prerogative orders); court's jurisdiction limited to the relief sought in the statement

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Simwah & another v Kakamega County Assembly Service Board; Akosi (Interested Party) (Judicial Review E005 of 2022) [2023] KEELRC 888 (KLR)", Case Analysis (2023). Bungoma High Court Judicial Review Application (Chamber Summons dated 13th December 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/888/eng@2023-04-14

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