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ELRCDismissedNot stated in the judgment

Khamisi v Institution of Engineers of Kenya & 4 others; Engineers Board of Kenya (Interested Party) (Employment and Labour Relations Petition E179 of 2023) [2024] KEELRC 681 (KLR)

Employment and Labour Relations Court / High Court of Kenya (Nairobi)
15 March 2024
3,535 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's courts declined to suspend a CEO appointment, ruling that allegations of bias need solid evidence, not just suspicion, before interim orders are issued.

What this practically means

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Executive summary

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The Petitioner filed a Notice of Motion dated 21 September 2023 in an interlocutory application seeking conservatory orders suspending the letter implementing the appointment of the 5th Respondent, Eng. Victor Mwongera, as Chief Executive Officer of the Institution of Engineers of Kenya, and a declaration that the Council's ordinary meeting of 21 September 2023 and its resolutions were null and void. The Petitioner alleged a sham recruitment process tainted by bias, since the 3rd Respondent, father of the 5th Respondent, chaired both the Eminent Engineers Forum and the Engineers Board of Kenya, and that the 2-day notice of the ordinary meeting contravened the institution's constitution. The Respondents countered that the orders sought were in substance mandatory injunctions incapable of being conservatory remedies, that the 5th Respondent was fully qualified, and that removing him would paralyse the institution. The Interested Party confirmed the 5th Respondent's professional registration under the Engineers Act. The court framed one issue: whether the Petitioner was entitled to the conservatory orders sought. Applying the Giella v Cassman Brown test together with the public-interest threshold in Gatirau Peter Munya v Dickson Mwenda Kithinji as elaborated in Muturi v Havi, the court found no prima facie case: the bias allegations were mere perception and speculation, the 5th Respondent's qualifications were undisputed, the applicant's injury was not irreparable, and the institution would suffer greater prejudice from a vacuum in its secretariat. The application was dismissed with each party bearing its own costs. The substantive Petition remains for determination.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether the Petitioner/Applicant is entitled to the conservatory orders sought

Key legal issues

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01

Whether the Petitioner established a prima facie case of bias and conflict of interest in the CEO recruitment

Holding

No prima facie case established; allegations were perception and speculation

Reasoning

The court found the petitioner's claims that the 3rd Respondent's positions in the EEF and EBK influenced the 5th Respondent's appointment rested on perceptions rather than evidence. There was no evidence that the 5th Respondent lacked qualifications, and no proof that safeguard mechanisms were absent or that the process was engineered to benefit him.

p. 7
02

Whether the injury claimed was irreparable and where the balance of convenience lay

Holding

Injury not irreparable; the 1st Respondent would suffer greater prejudice if the 5th Respondent vacated office

Reasoning

The court held the applicant's injury was not irreparable, while the respondents showed that removing the 5th Respondent would create a vacuum in the secretariat, paralysing the institution's operations. If the petition ultimately succeeded, the appointment could simply be quashed and fresh recruitment ordered.

p. 7

Legal principles established

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  • Conservatory orders are public-law remedies granted on the inherent merit of a case bearing in mind public interest and constitutional values, not on private-law irreparable harm considerations
  • A party seeking conservatory orders must first satisfy the Giella v Cassman Brown sequential test and then the public-interest element from Munya

Court orders

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  1. 1.Conservatory orders sought declined
  2. 2.Application dismissed
  3. 3.Each party to meet their own costs of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

Jurisdiction invoked
Constitution of Kenya, 2010 (petition alleging contravention of constitutional values of good governance, transparency and accountability; Fair Administrative Action Act invoked)

Relief refused

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Conservatory order suspending implementation of the letter appointing the 5th Respondent as CEO

Petitioner failed to establish a prima facie case; injury not irreparable; greater prejudice to 1st Respondent

p. 7

Declaration that the ordinary meeting of 21.09.2023 and its resolutions be null and void

Orders sought, couched as conservatory orders, would go beyond the scope of conservatory remedies; no compelling circumstances shown

p. 5

Costs

Each party to bear their own costs of the application ("the court orders respective parties to meet their costs of this application")

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Having considered the pleadings and the submissions the court finds and holds the conservatory orders sought are not merited and the petitioner has failed to meet the threshold set in Giella vs. Cassman Brown and Gatirau Peter Munya v Dickson Mwenda Kithinji. The application is therefore dismissed.
p. 7Dismissal of application
In view of the nature of the application, the court orders respective parties to meet their costs of this application.
p. 7Costs order
Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.
p. 6Threshold for conservatory orders

Issues in the judgment

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minor

The judgment does not state the case number, court station in the header, or full party names in the coram; parties are identified only descriptively in the body.

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, "Khamisi v Institution of Engineers of Kenya & 4 others; Engineers Board of Kenya (Interested Party) (Employment and Labour Relations Petition E179 of 2023) [2024] KEELRC 681 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/681/eng@2024-03-15

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