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ELRCDismissedRuling on Notice of Motion dated 14th December, 2020 (petition number not stated in judgment)

Andrew Mokaya Maubi v Meru University of Science and Technology & 2 others; Bosire Monari Mwebi (Interested Party) [2021] KEELRC 1440 (KLR)

Employment and Labour Relations Court of Kenya
25 February 2021
MMM. Mbaru
2,570 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to temporarily stop a university council chairperson's removal because the order requested would have effectively reinstated him before the full case was heard.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi (M. Mbaru, J) on the petitioner's notice of motion dated 14th December 2020 seeking conservatory orders restraining his removal as chairperson of the council of a public university and staying Gazette Notice No.10184 of 2020 which revoked his appointment and appointed the interested party in his place. The petitioner, appointed chairperson by Gazette Notice No.2375 of 20th March 2020 pursuant to section 36(1)(a) of the Universities Act, contended that the revocation, founded on an EACC report that he had defrauded Vision Institute of Professionals and faced criminal charges in Nairobi Chief Magistrates Court Criminal Case No.466 of 2019, was done without a hearing contrary to Articles 47, 50 and fair administrative action. The 2nd respondent, Cabinet Secretary for Education Prof. George Magoha, justified the revocation on integrity grounds. The court applied the framework in Gatirau Peter Munya and Platinum Distillers, holding that at the interlocutory stage it makes no definitive findings, and that the orders sought would effectively reinstate the petitioner and revert the parties to the pre-revocation position - relief amounting to reinstatement and specific performance regulated by sections 12 of the Employment and Labour Relations Act and 49(4) of the Employment Act - thereby conflating interlocutory and final issues. The application was declined; the petitioner is to have the main petition heard on priority basis, with costs to abide 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 petitioner has made out a prima facie case warranting conservatory orders restraining his removal as chairperson of the 1st respondent council
  2. 2.Whether denial of the conservatory orders would prejudice the petitioner
  3. 3.Whether granting the orders sought would conflate the interlocutory stage with final relief (reinstatement/specific performance) reserved for the main petition

Key legal issues

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01

Whether the conservatory orders sought were grantable at the interlocutory stage

Holding

No - the orders, if granted, would effect reinstatement of the petitioner and stay of a Gazette Notice, thereby granting final relief prematurely and conflating issues reserved for the main petition

Reasoning

The court accepted the Gatirau Peter Munya framework for conservatory orders but found that the orders sought would restore the petitioner to the chairperson position and revert the parties to the pre-revocation position, contrary to the Munya principles. Reinstatement and specific performance are regulated remedies under section 12 of the Employment and Labour Relations Act read with section 49(4) of the Employment Act, and cannot be granted as conservatory orders.

p. 3
02

Whether the petitioner established a prima facie case for the orders under the tests in Munya, CREAW and Omtatah

Holding

The court confined itself to evaluating the material without definitive findings and found the orders themselves contrary to the framework for conservatory relief, while directing priority hearing of the main petition

Reasoning

Relying on Platinum Distillers, the court's limited jurisdiction was to examine the material placed before it and the pleadings to determine prima facie case and prejudice. Having found that the very orders sought would be inappropriate at the interlocutory stage, the court declined them but ensured the petitioner would be heard promptly on the merits, noting he moved the court immediately upon revocation.

p. 3
03

Whether constitutional standing under Article 22 was properly invoked for conservatory relief under Article 23(2)(c)

Holding

The court noted the LSK case requiring an applicant to plead and establish on a prima facie basis denial, violation or threat to rights in the Bill of Rights

Reasoning

The court referenced the Law Society of Kenya decision on the requirements for conservatory orders under Article 23(2)(c), linking it to Article 22 standing. It emphasized the employer-employee context and held it imperative that the main petition be heard on the merits rather than resolved at the interlocutory stage.

p. 4

Legal principles established

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  • At the interlocutory stage the court makes no definitive finding of fact or law; it examines the material to determine whether a prima facie case warrants conservatory orders and whether denial would cause prejudice
  • Conservatory orders are granted on the inherent merit of a case bearing in mind public interest, constitutional values and proportionate magnitudes, not on private-law considerations of irreparable harm or high probability of success

Court orders

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  1. 1.The application dated 14th December, 2020 shall not issue as prayed
  2. 2.The petitioner shall be heard on the main petition and on priority basis
  3. 3.Hearing directions to issue instantly
  4. 4.Costs shall abide the petition

The bench

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

MM
majority

Wrote the judgment

Jurisdiction invoked
Articles 48 and 159 of the Constitution, 2010; sections 12, 20 and 29 of the Employment and Labour Relations Court Act; Rule 17 of the Employment and Labour Relations Court (Procedure) Rules, 2016

Relief refused

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Conservatory order restraining the respondents from removing the petitioner from the position of chairperson of the council of the 1st respondent

Granting it would effectively restore the petitioner to office, amounting to reinstatement/specific performance contrary to the principles for granting conservatory orders and conflating interlocutory and final issues

p. 4

Conservatory order staying the directions of Gazette Notice No.10184 of 2020 revoking the petitioner's appointment and appointing the interested party

Same conflation of issues; the position has been allocated to the interested party and the court cannot revert the parties to the pre-December 2020 position at the interlocutory stage

p. 3

Costs of the application

Costs were not awarded now but deferred to the main petition

p. 4

Costs

Costs shall abide 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.

Accordingly, the application dated 14th December, 2020 shall not issue as prayed; the petitioner shall be heard on the main petition and on priority basis; hearing direction shall issue instantly. Costs shall abide the petition.
p. 4Final orders and disposition
At this stage, the court is not required to make any definitive finding either of fact or law as that is the province of the court that will ultimately hear the petition.
p. 3Scope of interlocutory determination
to issue the orders sought at this instance would be contrary to the principles for the grant of conservatory orders and result in conflation of issues instead of facilitating the ordered functioning within public agencies
p. 4Conflation of interlocutory and final relief
In employment and labour relations and unlike any other relationship, such would be to direct reinstatement and specific performance.
p. 3Reinstatement not grantable as conservatory order

Issues in the judgment

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minor

Gazette Notice number for the revocation appears inconsistently as No.10184 and No.101854 in the judgment

minor

Date of the revoking Gazette Notice stated inconsistently: petitioner pleads 20th December, 2020; 2nd respondent avers 4th December, 2020; court refers to 2nd December, 2020

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, "Andrew Mokaya Maubi v Meru University of Science and Technology & 2 others; Bosire Monari Mwebi (Interested Party) [2021] KEELRC 1440 (KLR)", Case Analysis (2021). Ruling on Notice of Motion dated 14th December, 2020 (petition number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1440/eng@2021-02-25

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