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ELRCOtherNot stated in the judgment (the ex-parte applicants' earlier matter Kisumu ELRC JR E012 of 2023 was withdrawn; Kisumu ELRC JR E002 of 2023 is referenced as a related, separate proceeding)· [2023] KEELRC 1539 (KLR)

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)

Employment and Labour Relations Court
21 June 2023
3,987 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The ex-parte applicants, members of the Kisii County Public Service Board, obtained leave on 25 April 2023 to file judicial review orders of prohibition, certiorari and mandamus arising from an Interested Party's Petition before the Kisii County Assembly seeking their removal. The court at the leave stage declined proposed orders (6) and (7) seeking an extended stay of degazettement, declaration of vacancies and recruitment of replacements. The applicants then filed a contempt Motion and a further Motion (the 2nd Motion) seeking, among other things, a stay of Gazette Notice No. 5841 of 2023 revoking their appointments and prohibitory orders against their replacement. The 4th Respondent raised a Preliminary Objection on res judicata, sub judice and abuse of process, and the contempt Motion was set down for simultaneous hearing. The court found the sub judice objection moot following the withdrawal of Judicial Review No. E012 of 2023, but upheld the res judicata objection, holding that in judicial review proceedings a court cannot revisit orders sought and declined at the leave stage. The 2nd Motion was struck out. On contempt, the court restated the criminal nature of contempt proceedings and the elevated standard of proof, and found that although the orders were served, service occurred after the County Assembly had concluded its proceedings, and the applicants failed to fix the time of the alleged office invasion or produce supporting affidavits; wilful disobedience was not proved and the contempt Motion was dismissed. Costs were in the cause, with directions promised for expeditious disposal of the outstanding proceedings.

Key legal issues

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01

Whether the 2nd Motion was res judicata and an abuse of process

Holding

The Preliminary Objection was upheld and the Motion struck out because the stay and prohibitory orders sought repeated prayers declined at the leave stage

Reasoning

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.

p. 8
02

Whether the sub judice objection lay

Holding

The objection did not lie for the court's attention after leave was granted to withdraw Judicial Review No. E012 of 2023

Reasoning

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.

p. 6
03

Whether the Respondents were in contempt of the orders of 25 April 2023

Holding

The contempt Motion was dismissed as the applicants failed to prove wilful disobedience

Reasoning

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.

p. 9

Legal principles established

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  • 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

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  1. 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. 2.The Motion dated 8 May 2023 and filed in Court on 9 May 2023 is struck out
  3. 3.The Court finds no merit in the contempt Motion dated 3 May 2023
  4. 4.The contempt Motion is dismissed
  5. 5.Costs in the cause
  6. 6.The Court will hereinafter issue directions on the expeditious determination of the outstanding application(s) and the judicial review proceedings

Authorities

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Legislation

  • Civil Procedure Actsection 7
  • Civil Procedure RulesOrder 53
  • Constitution of Kenyaarticles 35(1)(b) and 35(2)

Cases cited (8)

  • Gladys Nduku Nthuki v Letshego Kenya Ltd, Mueni Charles Maingi (Intended Plaintiff)
    [2022] eKLR
  • Accredo AG & 3 Ors v Steffano Uccelli & Ar
    [2019] eKLR
  • Satya Bhama Gandhi v Director of Public Prosecutions & 3 Ors
    [2018] eKLR
  • Cortec Mining Kenya Ltd v Cabinet Secretary, Attorney General & 8 Ors
    (2015) eKLR
  • Duncan Manuel Murigi v Kenya Railways Corporation
    [2008] eKLR
  • Kenya Tea Growers Association v Francis Atwoli and 5 Ors
    [2012] eKLR
  • Ochino & Ar v Okombo & 4 Ors
    [1989] KLR
  • Shimmers Plaza Ltd v NBK
    [2015] eKLR
Jurisdiction invoked
Original judicial review jurisdiction of the Employment and Labour Relations Court under Order 53 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, "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.