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ELRCOther(not stated in the judgment text)

Edward Ombwori Gichana v Adah Onyango & another [2021] KEELRC 199 (KLR)

Employment and Labour Relations Court
11 November 2021
934 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to reinstate a former county assembly clerk's salary, ruling that unopposed applications don't guarantee relief.

What this practically means

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Executive summary

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The petitioner, formerly Clerk of the Nairobi City County Assembly, moved the court by application dated 13th October 2021 under Articles 48, 50 and 159 of the Constitution, sections 1A, 1B, 3A and 3B and Order 51 Rule 1 of the Civil Procedure Rules, the County Assembly Services Act and the County Government Act. He sought orders compelling the respondents to reinstate his salary, allowances and medical cover, and injunctions restraining his suspension, dismissal or other prejudicial treatment pending hearing of his petition. He had been appointed Clerk by letter dated 23rd July 2020, but on 4th June 2021 the Court of Appeal injuncted him, together with Jacob Ngwele, from exercising the powers of the Clerk's office pending the hearing of an application in Civil Application No. NAI E351 of 2020, to which he was not a party. He stepped aside, the 1st respondent became Acting Clerk, and his salary and allowances were stopped, leaving him without pay for over four months. The respondents filed Grounds of Opposition and later failed to file a Replying Affidavit or attend for submissions, so the petitioner was heard unopposed. The court examined the Court of Appeal orders and found they contained no direction for payment of salary or allowances to the petitioner, and that the underlying judgment in ELRC Petition No. 194 of 2019 had not been attached for assessment. Holding that issuing the orders at that stage, even unopposed, would not meet the ends of justice, the court declined to grant them, gave the respondents 14 days to reply, closed pleadings in 30 days with hearing dates to be allocated, and directed costs in the petition.

Questions the Court framed

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

  1. 1.Whether the court should compel the respondents to reinstate the petitioner's salary, allowances and medical cover pending hearing of the application and petition
  2. 2.Whether to restrain the respondents from terminating, withholding or suspending the petitioner's salary and allowances pending the inter-partes hearing
  3. 3.Whether to restrain the respondents from suspending, dismissing, reshuffling or sending the petitioner on compulsory leave pending hearing of the petition
  4. 4.Whether such interim orders can issue in the absence of a Replying Affidavit by the respondents

Key legal issues

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Scope and effect of the Court of Appeal orders of 4th June 2021

Holding

The orders merely injuncted the petitioner and one Jacob Ngwele from exercising the powers or duties of the office of Clerk, stayed execution of the ELRC judgment, and restrained recruitment of a substantive Clerk; they did not direct payment of salary or allowances to the petitioner

Reasoning

The court read the Court of Appeal orders and found they contained no direction that the petitioner's salary or allowances be paid pending the hearing of the application at the Court of Appeal. The petitioner, though relying on those orders, was himself not a party to the application in which they were made. Without the underlying ELRC judgment, the court could not assess the nature of the claim so as to direct payment of salary and allowances.

p. 2
02

Whether interim orders should issue in the absence of a Replying Affidavit

Holding

No - the court declined to grant the orders sought at the interlocutory stage even though the respondents filed no Replying Affidavit and did not attend for submissions

Reasoning

The petitioner was heard unopposed after the respondents failed to comply with directions. Nonetheless, the court held that granting the substantive interim orders without hearing the petition on the merits would not meet the ends of justice. The respondent's non-compliance did not automatically entitle the petitioner to the relief sought; instead the court gave the respondents 14 days to reply and closed pleadings in 30 days.

p. 2

Legal principles established

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  • Interim orders in aid of a pending petition cannot issue where the orders sought find no basis in the superior court's orders and where the underlying judgment has not been placed before the court for assessment
  • A party is not entitled to interim relief merely because the other side has not filed a Replying Affidavit; the court may decline orders that would not meet the ends of justice

Court orders

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  1. 1.Orders sought in the application shall not issue at this stage
  2. 2.The respondents are given 14 days to reply to the petition
  3. 3.Pleadings shall close in 30 days after which parties shall be allocated a hearing date at the registry
  4. 4.Costs in the petition

The bench

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

majority

Wrote the judgment

On appeal from
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null
Jurisdiction invoked
Articles 48, 50 and 159 of the Constitution; sections 1A, 1B, 3A and 3B and Order 51 Rule 1 of the Civil Procedure Rules; the County Assembly Services Act; the County Government Act

Relief refused

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Order compelling reinstatement of the petitioner's salary, allowances and medical cover pending hearing and determination of the application and petition

The Court of Appeal orders of 4th June 2021 did not direct payment of salary or allowances to the petitioner, and the court could not make such a direction without assessing the underlying judgment and appeal

p. 2

Interlocutory injunctions restraining termination, withholding or suspension of salary and allowances and from suspending, dismissing, reshuffling or sending the petitioner on compulsory leave

Justice would not be met by granting the orders at the interlocutory stage without hearing the petition on the merits

p. 2

Costs

Costs in the petition (no order as to costs of the application; costs to be in the petition)

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.

There is no matter directing for payment of salary or allowances to the petitioner or any party pending hearing of Court of Appeal Civil Application No. NAI E351 of 2020.
p. 2effect of the Court of Appeal orders of 4th June 2021
Unless the court is able to hear the petition on the merits, at this stage to issue the orders sought even in the absence of a Replying Affidavit by the respondents would not meet the ends of justice.
p. 2interim relief in the absence of a reply
Orders sought in the instant application shall not issue at this stage. The respondents are given 14 days to reply to the petition.
p. 2final orders on the application

Issues in the judgment

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minor

The petition and application case numbers are not stated in the judgment text, and the parties are referred to only as 'petitioner', '1st respondent', '2nd respondent' and '3rd respondent' without names (save for references to the 1st respondent as Acting Clerk and to Jacob Ngwele as a non-party to the Court of Appeal application)

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, "Edward Ombwori Gichana v Adah Onyango & another [2021] KEELRC 199 (KLR)", Case Analysis (2021). (not stated in the judgment text). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/199/eng@2021-11-11

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