Kanake v Kenya Film Commission & another (Employment and Labour Relations Cause E014 of 2023) [2023] KEELRC 2005 (KLR)
The bottom line
#A Kenyan court temporarily shielded a former Kenya Film Commission manager from further disciplinary action while her judicial review case is decided.
What this practically means
#Executive summary
#Key legal issues
#Whether the leave granted on April 12, 2023 should operate as stay of the interdiction and disciplinary process
Yes, in part - the leave was to operate as a restraint on further disciplinary action, dismissal, demotion or victimisation pending hearing of the main motion
The court applied Order 53 Rule 1(4) of the Civil Procedure Rules and the authorities on the purpose of stay in judicial review. The purpose is to preserve the status quo and prevent the decision-making process from continuing before the substantive motion is determined. The applicant had raised an arguable case and the respondents would suffer no prejudice. However, mandamus-type orders compelling action were outside the scope of stay.
Scope and purpose of stay orders in the judicial review jurisdiction
Stay prevents continuation of an unmade decision or suspends implementation of a made decision, encompassing administrative decision-making processes; it restrains, but cannot compel, a public body
Drawing on Wandayi, R (H) v Ashworth Hospital Authority, ex parte Avon County Council and Taib A Taib, the court held that a stay preserves the status quo so that a successful applicant is not denied the full benefit of success. It applies to administrative decision-making, not just judicial or quasi-judicial proceedings, provided the process has not been completed. Stay cannot be used to compel performance.
Whether granting stay would determine the substantive case
The court must be careful in a leave/stay application not to touch the merits of the main judicial review application
The respondents argued the issues in the chamber summons mirrored those in the substantive motion. Citing Kenyatta University v Wellington Kihato Wamburu, the court noted that where the outcome of the judicial review might contradict the decision challenged, stay should be granted to avoid foisting a concluded decision on the court. The court nonetheless deferred merits to the main motion and set timelines for submissions.
Legal principles established
#- Stay in judicial review preserves the status quo and is appropriate to restrain a public body from acting, but not to compel it to act
- Leave should not operate as stay where the decision challenged has already been fully implemented; it is available only where the decision has not been implemented or is in the course of implementation
- In an application for leave and stay, the court must be careful not to touch on the merits of the main judicial review application
Court orders
#- 1.The order issued to operate as leave to restrain the respondents or their representatives from subjecting the applicant to further unfair disciplinary action or attempting to dismiss, remove from office, demote in rank or victimise the applicant pending hearing of the main motion
- 2.The applicant to file submissions to the main motion within 30 days if they so wish
- 3.The respondents to file their submissions within 30 days upon service
- 4.Mention on October 4, 2023 to confirm compliance and to give a date for judgment
- Jurisdiction invoked
- Judicial review jurisdiction under Order 53 Rule 1(4) of the Civil Procedure Rules and section 9(1) of the Fair Administrative Action Act (as invoked by the parties)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kanake v Kenya Film Commission & another (Employment and Labour Relations Cause E014 of 2023) [2023] KEELRC 2005 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2005/eng@2023-08-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.