Edward Ombwori Gichana v Adah Onyango & another [2021] KEELRC 199 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether to restrain the respondents from terminating, withholding or suspending the petitioner's salary and allowances pending the inter-partes hearing
- 3.Whether to restrain the respondents from suspending, dismissing, reshuffling or sending the petitioner on compulsory leave pending hearing of the petition
- 4.Whether such interim orders can issue in the absence of a Replying Affidavit by the respondents
Key legal issues
#Scope and effect of the Court of Appeal orders of 4th June 2021
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
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.
Whether interim orders should issue in the absence of a Replying Affidavit
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
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.
Legal principles established
#- 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
#- 1.Orders sought in the application shall not issue at this stage
- 2.The respondents are given 14 days to reply to the petition
- 3.Pleadings shall close in 30 days after which parties shall be allocated a hearing date at the registry
- 4.Costs in the petition
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- null
- 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
#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
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
Costs
Costs in the petition (no order as to costs of the application; costs to be in the petition)
Quotable passages
#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.
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.
Orders sought in the instant application shall not issue at this stage. The respondents are given 14 days to reply to the petition.
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.