Republic v Chief Magistrare Court, Migori; John & 10 others (Interested Parties) (Judicial Review Application E001 of 2023) [2023] KEELRC 1065 (KLR)
The bottom line
#The Employment Court kept the Migori Assembly case, refused to reverse earlier orders, and ordered the release of assembly records within 14 days.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over the judicial review proceedings
The ELRC has jurisdiction as there exists an employer-employee relationship between the Speaker/County Assembly and members of the County Public Service Board
Section 12 of the ELRC Act limits the court's jurisdiction to employment and labour relations disputes. The ex parte applicant is the Speaker of Migori County Assembly and the interested parties are current and former members of the County Public Service Board, so an employer-employee relationship exists placing the matter squarely within the court's jurisdiction. The preliminary objection was dismissed.
Whether the 3rd and 4th interested parties should be denied audience for contempt of the Magistrates Court orders
Refused
Contempt must be established through contempt proceedings proving the four elements in Samuel M. N Mweru v National Land Commission. No contempt proceedings had been filed before the court. Moreover, the orders alleged to have been violated were issued by the Magistrates Court, which retains power to enforce them under Order 40 rule 3 of the Civil Procedure Rules. The court declined to determine whether the orders were violated.
Whether the orders of February 6, 2023 should be stayed and vacated
Refused
The applicants relied only on allegations of contempt and did not demonstrate discovery of new and important matter, error apparent on the face of the record, need for clarification, or other sufficient reason under Rule 33(1) of the ELRC (Procedure) Rules, 2016. The court held that staying or vacating the orders would amount to sitting on appeal over orders of a court of concurrent jurisdiction.
Access to hansard proceedings under Article 35(1)(b)
Allowed
The applicants sought copies of the Migori County Assembly hansard proceedings of January 31, 2023 in relation to the tabling of the report on their removal from office. Article 35(1)(b) of the Constitution guarantees every citizen the right of access to information held by another person and required for the exercise or protection of any right. The court ordered the 3rd interested party to avail the hansard within 14 days.
Legal principles established
#- A court's jurisdiction flows only from the Constitution or legislation and cannot be self-conferred
- Without jurisdiction a court must down its tools
- Breach of court orders is enforceable by the court that granted the orders
- Four elements must be proved for a contempt application to succeed
Court orders
#- 1.Prayers for stay and vacation of the orders of February 6, 2023 and for denial of audience to the 3rd and 4th interested parties dismissed
- 2.The 3rd interested party ordered to avail the hansard proceedings of January 31, 2023 to the applicants within 14 days of the order
- 3.Preliminary objection dismissed with costs
- Jurisdiction invoked
- Section 12 of the Employment and Labour Relations Court Act and Article 162(2) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Chief Magistrare Court, Migori; John & 10 others (Interested Parties) (Judicial Review Application E001 of 2023) [2023] KEELRC 1065 (KLR)", Case Analysis (2023). ELRC (Kism) JR E001 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1065/eng@2023-05-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.