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ELRCPartially AllowedELRC (Kism) JR E001 of 2023· [2023] KEELRC 1065 (KLR)

Republic v Chief Magistrare Court, Migori; John & 10 others (Interested Parties) (Judicial Review Application E001 of 2023) [2023] KEELRC 1065 (KLR)

Employment and Labour Relations Court of Kenya
4 May 2023
2,864 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The court (Baari J) determined an inter partes notice of motion and a preliminary objection dated February 14, 2023, filed by members of the Migori County Public Service Board (6th–11th interested parties) within judicial review proceedings ELRC (Kism) JR E001 of 2023, instituted by the Speaker of Migori County Assembly. The applicants sought stay and vacation of ex-parte orders issued by Justice Radido on February 6, 2023 on grounds of material non-disclosure, denial of audience to the Speaker and County Clerk for contempt of orders issued in Migori CMCC E012 of 2023, and copies of the County Assembly hansard proceedings of January 31, 2023. The court dismissed the stay/vacation prayer, holding that the applicants failed to meet the Rule 33(1) review threshold and that such relief would amount to sitting on appeal over orders of a court of concurrent jurisdiction. The denial-of-audience prayer also failed because no contempt proceedings had been filed and the alleged contempt related to orders of the Magistrates Court, which alone can enforce them. The prayer for hansard proceedings was allowed under Article 35(1)(b), with the 3rd interested party ordered to avail them within 14 days. On the preliminary objection, the court held that section 12 of the ELRC Act and Article 162(2) confer jurisdiction, as an employer-employee relationship exists between the Speaker and the Board members, and dismissed the objection with costs.

Key legal issues

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01

Jurisdiction of the ELRC over the judicial review proceedings

Holding

The ELRC has jurisdiction as there exists an employer-employee relationship between the Speaker/County Assembly and members of the County Public Service Board

Reasoning

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.

p. 7
02

Whether the 3rd and 4th interested parties should be denied audience for contempt of the Magistrates Court orders

Holding

Refused

Reasoning

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.

p. 4
03

Whether the orders of February 6, 2023 should be stayed and vacated

Holding

Refused

Reasoning

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.

p. 5
04

Access to hansard proceedings under Article 35(1)(b)

Holding

Allowed

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 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. 3.Preliminary objection dismissed with costs

Authorities

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Legislation

  • Employment and Labour Relations Court Actsection 12(1)(a)-(f)
  • Constitution of Kenya, 2010Articles 162(2), 165(6) & (7), 35(1)(b)
  • County Assemblies Powers and Privileges Act, No 6 of 2017sections 10 and 11
  • Civil Procedure RulesOrder 40 rule 3
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 33(1)
  • Gazette Notice No 6024 of 2018

Cases cited (5)

  • Samuel M. N Mweru and other v National Land Commission & 2 others
    [2020] eKLR
  • Garden Square Limited v Sammy Boit Kogo & another
    Nairobi (Milimani) HCCC No 1266 of 2003 [2003] KLR 20
  • Samuel Kamau Macharia & another v Kenya Commercial Bank and Another
    [2012] eKLR
  • Nick Githinji Ndichu v Clerk Kiambu County Assembly and another
    [2014] eKLR
  • Mokoro Jared John & another v Speaker, County Assembly of Migori & 2 others
    CMCC E012 of 2023
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act and Article 162(2) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.