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ELRCDismissedNot stated in judgment (Petition with notice of motion dated 06.12.2022)· [2023] KEELRC 1394 (KLR)

Muia v Clerk, Machakos County Assembly & 4 others; County Public Service Boards National Consultative Forum (Interested Party) (Constitutional Petition 3 of 2022) [2023] KEELRC 1394 (KLR)

Employment and Labour Relations Court
2 June 2023
BOByram Ongaya
1,960 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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The Employment Court refused to reinstate Machakos County Public Service Board's removed secretary pending trial, ruling reinstatement is a final remedy granted only after a full hearing.

What this practically means

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Executive summary

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The petitioner, formerly secretary of the Machakos County Public Service Board, moved the Court by notice of motion dated 06.12.2022 seeking, pending the hearing of his petition, orders to suspend the County Assembly's resolution of 29.11.2022 removing him from office (Gazette Notice No. 14710 of 30.11.2022), to bar the respondents from recruiting to the position, and to reinstate him. He alleged the removal process breached Article 50 (biased select committee, denied access to documents, predetermined outcome), amounted to double jeopardy given a prior 2022 inquiry that exculpated him, and violated Articles 27, 47 and 236. The respondents opposed: the 4th and 5th respondents argued the matter overlapped with pending Machakos ELRC Judicial Review No. E4 of 2022, that the gazette notice had been acted upon and vacancies competitively filled, and that reinstatement was a final order; the 1st, 2nd and 3rd respondents contended the removal followed section 58(5) of the County Governments Act, that there was no double jeopardy, and urged dismissal with costs. The Court dismissed preliminary objections on jurisdiction, holding res judicata inapplicable since the earlier petition E2 of 2022 was withdrawn without a decision on merits, and the sub judice rule did not bar the petition despite the pending judicial review. On the interlocutory reliefs, the Court held reinstatement is a final order granted only after full hearing and only in the clearest cases; strained relations and the filling of the vacancy barred interlocutory reinstatement or preservation, and the stay was overtaken by events. The application and preliminary objections were dismissed with each party bearing own costs; the petition was set down for further directions.

Key legal issues

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01

Res judicata and sub judice

Holding

Res judicata did not apply as the earlier petition was withdrawn without consideration on merits; sub judice did not chain the petition despite the pending judicial review application.

Reasoning

The Court found no previous final decision by a competent court, so section 7 of the Civil Procedure Act was inapplicable. It further observed that seeking judicial review orders in a separate application while pursuing a petition over the same cause of action is accepted practice, so the applicant could not be faulted. Consolidation of the judicial review and petition was suggested for efficiency.

p. 5
02

Interlocutory reinstatement and preservation of office

Holding

Reinstatement pending hearing could not issue; it is a final, mandatory order granted only in clearest cases, and strained relations plus a filled vacancy barred it.

Reasoning

The Court held reinstatement ordinarily follows full hearing and resembles a mandatory injunction or specific performance. Here relations were seriously strained and the vacancy appeared filled, factors operating as a bar to interlocutory reinstatement or preservation of the vacancy; the stay sought was overtaken by events.

p. 5

Legal principles established

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  • Res judicata does not apply where there is no previous final decision on merits by a competent court; withdrawal without consideration on merits does not create res judicata
  • Reinstatement is a final order of a mandatory character granted only in the clearest cases and ordinarily only after full hearing

Court orders

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  1. 1.The application dated 07.12.2022 is dismissed
  2. 2.The respondents' preliminary objections dated 9.12.2022 and 7.12.2022 are dismissed
  3. 3.Each party to bear own costs of the application and preliminary objections
  4. 4.Parties to fix a date for further directions for expeditious hearing and determination of the petition

Authorities

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Legislation

  • Civil Procedure Act, Cap 21sections 1A, 1B, 3A and 7
  • Civil Procedure RulesOrder 51 Rule 1
  • Labour Institutions Actsections 2, 3 and 34
  • County Governments Act, 2012sections 55, 56, 57, 58(4) and 58(5)
  • Constitution of Kenya, 2010Articles 10, 23(1), 25(1), 27, 41, 47, 50, 159, 232 and 236
  • County Assembly of Machakos Standing Ordersstanding orders 46(1) and 62
Jurisdiction invoked
Articles 41, 50 and 159 of the Constitution; sections 2, 3 and 34 of the Labour Institutions Act; sections 1A, 1B and 3A of the Civil Procedure Act; Order 51 Rule 1 of the Civil Procedure Rules

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, "Muia v Clerk, Machakos County Assembly & 4 others; County Public Service Boards National Consultative Forum (Interested Party) (Constitutional Petition 3 of 2022) [2023] KEELRC 1394 (KLR)", Case Analysis (2023). Not stated in judgment (Petition with notice of motion dated 06.12.2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1394/eng@2023-06-02

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