Republic v Clerk, Kisii County Assembly & 3 others; Nyamwange & 4 others (Ex parte Applicants); Atika (Interested Party) (Judicial Review Miscellaneous Application E013 of 2023) [2023] KEELRC 1539 (KLR)
The bottom line
#The Employment Court in Kisumu struck down repeat applications over Kisii County Public Service Board appointments and dismissed a contempt claim for lack of proof.
What this practically means
#Executive summary
#Key legal issues
#Whether the 2nd Motion was res judicata and an abuse of process
The Preliminary Objection was upheld and the Motion struck out because the stay and prohibitory orders sought repeated prayers declined at the leave stage
The court compared the Chamber Summons leave application with the 2nd Motion and concluded that the orders seeking to stay degazettement, declaration of vacancies and recruitment of new Board members were substantially the same as proposed orders (6) and (7) which the court had declined on 25 April 2023. Judicial review being a special proceeding under Order 53, the applicants could not invite the court to revisit causes already presented and declined at the leave stage.
Whether the sub judice objection lay
The objection did not lie for the court's attention after leave was granted to withdraw Judicial Review No. E012 of 2023
The 4th Respondent abandoned the sub judice objection in anticipation of the ruling on the Notice of Withdrawal. On 6 June 2023 the court granted leave to withdraw Judicial Review No. E012 of 2023, removing the basis of the objection.
Whether the Respondents were in contempt of the orders of 25 April 2023
The contempt Motion was dismissed as the applicants failed to prove wilful disobedience
Although service of the orders was not denied, service occurred after the County Assembly proceedings had concluded, a position not controverted. The applicants did not state when the alleged office invasion or closure took place, and filed no affidavit from any employee allegedly intimidated. The chamber proceedings of 25 April 2023 were ex-parte, so the respondents and their advocates had no knowledge of them at issuance.
Legal principles established
#- Res judicata under section 7 of the Civil Procedure Act applies where an issue was directly and substantially in issue in a previous proceeding between the same parties heard and determined by a competent court.
- In judicial review proceedings under Order 53, a court cannot revisit orders which were sought for and declined at the leave stage after the grant of leave.
- Contempt proceedings are criminal in nature and the standard of proof is higher than a balance of probabilities but not beyond reasonable doubt.
- The test for contempt requires proof of the existence of a court order, service or knowledge of the order, and a deliberate or wilful breach.
Court orders
#- 1.The Preliminary Objection against the Motion dated 8 May 2023 and filed in Court on 9 May 2023 in respect to the stay and prohibitory orders is upheld
- 2.The Motion dated 8 May 2023 and filed in Court on 9 May 2023 is struck out
- 3.The Court finds no merit in the contempt Motion dated 3 May 2023
- 4.The contempt Motion is dismissed
- 5.Costs in the cause
- 6.The Court will hereinafter issue directions on the expeditious determination of the outstanding application(s) and the judicial review proceedings
- Jurisdiction invoked
- Original judicial review jurisdiction of the Employment and Labour Relations Court under Order 53 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Clerk, Kisii County Assembly & 3 others; Nyamwange & 4 others (Ex parte Applicants); Atika (Interested Party) (Judicial Review Miscellaneous Application E013 of 2023) [2023] KEELRC 1539 (KLR)", Case Analysis (2023). Not stated in the judgment (the ex-parte applicants' earlier matter Kisumu ELRC JR E012 of 2023 was withdrawn; Kisumu ELRC JR E002 of 2023 is referenced as a related, separate proceeding). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1539/eng@2023-06-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.