Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially Allowed· [2023] KEELRC 2005 (KLR)

Kanake v Kenya Film Commission & another (Employment and Labour Relations Cause E014 of 2023) [2023] KEELRC 2005 (KLR)

Employment and Labour Relations Court (inferred from coram; not expressly named in the judgment)
9 August 2023
2,576 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

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

#
This ruling by Mwaure J determined a single question arising in a judicial review motion: whether the leave granted on April 12, 2023 by Nderi Nduma J should operate as stay of the applicant's interdiction and any disciplinary proceedings pending hearing of the substantive motion. The applicant, a human resource and administration manager at the Kenya Film Commission, sought orders of prohibition and mandamus, declarations that her interdiction and subsequent punishment were procedurally unfair and violated her rights to a fair hearing and fair administrative action, reinstatement of transferred administration functions, written reasons, disclosure of the investigation report, and refund of her withheld half salary. The respondents, through the CEO's replying affidavit, explained that the applicant surrendered a laptop late and unsigned, that an ICT assets inventory found software configurations removed without approval, and that the interdiction followed the show-cause process under the KFC Human Resource policy, the Public Service Discipline Manual 2022 and Mwongozo, with Ministry involvement because the Commission had no Board. Applying Order 53 Rule 1(4) of the Civil Procedure Rules and authorities including Wandayi, Ashworth Hospital, ex parte Avon, Taib A Taib and Kenyatta University, the court held that a stay preserves the status quo, is available where the challenged decision has not been fully implemented, and can restrain but not compel a public body. The court directed that the leave operate as a restraint on further disciplinary action, dismissal, demotion or victimisation pending the main motion, set 30-day timelines for submissions, and fixed mention for October 4, 2023. No costs order was made.

Key legal issues

#
01

Whether the leave granted on April 12, 2023 should operate as stay of the interdiction and disciplinary process

Holding

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

Reasoning

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.

p. 5
02

Scope and purpose of stay orders in the judicial review jurisdiction

Holding

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

Reasoning

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.

p. 5
03

Whether granting stay would determine the substantive case

Holding

The court must be careful in a leave/stay application not to touch the merits of the main judicial review application

Reasoning

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.

p. 5

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. 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. 2.The applicant to file submissions to the main motion within 30 days if they so wish
  3. 3.The respondents to file their submissions within 30 days upon service
  4. 4.Mention on October 4, 2023 to confirm compliance and to give a date for judgment

Authorities

#

Legislation

  • Civil Procedure RulesOrder 53 Rule 1(4)
  • Fair Administrative Action Actsection 9(1)
  • Kenya Information Communication ActSection 83X & Y
  • Public Officers Ethics Act, Cap 183Section 15
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Civil Procedure RulesOrder 21 Rule 1
  • Public Service Discipline Manual 2022not stated
  • KFC Human Resource Policy and Procedure Manualclauses 11.9.1 and 10.39.1
  • Mwongozo Codesection 1.19

Cases cited (5)

  • James Opiyo Wandayi vs Kenya National Assembly & 2 others
    [2016] eKLR
  • R (H) vs Ashworth Hospital Authority
    [2003] WLR 127
  • Republic vs Secretary of State for Education and Science, ex parte Avon County Council (No 2)
    (1991) 1 All ER 282
  • Taib A Taib vs The Minister for Local Government & Others
    Mombasa HCMISCA No 158 of 2006
  • Kenyatta University & 3 others vs Wellington Kihato Wamburu & 3 Others
    [2017] eKLR
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.