African Institute for Peace & Human Rights & another v Attorney General & another (Employment and Labour Relations Petition E084 of 2024) [2024] KEELRC 2541 (KLR)
The bottom line
#Kenya's High Court refused to suspend the appointment of the Assets Recovery Agency Director, dismissing both a preliminary objection challenge and the request for interim suspension.
What this practically means
#Executive summary
#Key legal issues
#Whether objections touching on Article 35 rights, corporate citizenship and the authorship of the information request are preliminary objections
They are not preliminary objections as they entail resolution of disputes of fact and must await determination of the petition on the merits.
Guided by the Mukisa Biscuits definition, the court held that a preliminary objection must be a pleaded point of law capable of disposing of the suit on the assumption that the pleaded facts are undisputed. Objections (1)-(4) required factual inquiry into the petitioner's status and the authorship of the letter, so they could not be determined in limine.
Whether the petition is sub judice under Section 6 of the Civil Procedure Act
The preliminary objection on sub judice fails; the respondents did not demonstrate identity of parties, subject matter or the other court's competence, and no pleadings were attached.
Applying Section 6 of the Civil Procedure Act, the Edward R. Ouko principles and the Supreme Court's articulation in the KNCHR case, the court noted that the party invoking res sub judice must establish more than one suit over the same subject matter, between the same parties or their representatives, before competent courts. The respondents adduced no pleadings and failed to prove these elements.
Whether conservatory orders suspending the 2nd respondent's appointment should issue pending trial
No. The court was not persuaded there were compelling reasons; suspending the appointment would adversely affect a public institution and was not in the public interest.
Applying the Supreme Court's principles in Gatirau Peter Munya v Dickson Mwenda Kithinji, the court observed that conservatory orders serve public-law purposes and are granted on the inherent merits of a case with regard to public interest. The applicants failed to show a cogent interim basis, and granting the order would require the court to delve into the merits of the petition without a substantive hearing.
Legal principles established
#- A preliminary objection must consist of a pure point of law on the assumption that all facts pleaded are not in dispute; objections requiring resolution of disputes of fact do not qualify
- For the sub judice rule to apply, the parties and subject matter of the earlier suit must be the same or substantially the same, and the party invoking it bears the burden of demonstrating this
- Conservatory orders are granted on the inherent merits of the case, bearing in mind public interest and constitutional values, not on private-law interlocutory injunction criteria
Court orders
#- 1.The Notice of Preliminary Objection dated 24th June 2024 is dismissed
- 2.The Notice of Motion dated 31st May 2024 is dismissed
- 3.Costs to be in the cause
- Jurisdiction invoked
- Articles 2, 3, 10, 35(1), 73 and 232 of the Constitution of Kenya 2010 (reliefs invoked); sub judice rule under Section 6 of the Civil Procedure Act considered
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "African Institute for Peace & Human Rights & another v Attorney General & another (Employment and Labour Relations Petition E084 of 2024) [2024] KEELRC 2541 (KLR)", Case Analysis (2024). Petition dated 31/5/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2541/eng@2024-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.