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ELRCDismissedNotice of Motion dated 29.05.2024 (within Petition)

Tindi v Board of Directors, Kenyatta National Hospital; Kamuri (Interested Party) (Petition E081 of 2024) [2024] KEELRC 2060 (KLR)

Employment and Labour Relations Court
26 July 2024
1,632 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to bar KNH's CEO from office during corruption investigations, ruling the taxpayer failed to prove a prima facie case.

What this practically means

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Executive summary

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The applicant, a Kenyan taxpayer, moved the Employment and Labour Relations Court by Notice of Motion dated 29 May 2024 seeking conservatory orders barring the interested party, the Chief Executive Officer of Kenyatta National Hospital, from accessing the CEO's office and the hospital's premises pending hearing of the main petition. The application followed the interested party's arrest and police bond by the Ethics and Anti-Corruption Commission on 22 May 2024 over corruption and economic crimes allegedly committed in the exercise of the CEO's functions, and the freezing of Kshs. 28,000,000 in his account. The applicant argued that the respondent Board was duty-bound under its Human Resource Policy Manual, Mwongozo and relevant statutes to investigate the interested party, and that its inaction, coupled with the risk of interference with investigations, justified the orders in the public interest. The respondent opposed the application, stating the CEO had not been charged, no complaint had been received, and the applicant relied on newspaper cuttings; it contended fair labour practices and due process would be undermined. The Court held that no complaint or adverse report existed to trigger the respondent's disciplinary powers, that the applicant failed to show how the petition would be rendered nugatory, that no prima facie case was established, and that the prayer was misconceived as it sought an order directed at an interested party who was not named as a respondent. Applying Judicial Service Commission v Speaker of the National Assembly, the Court dismissed the application with costs in the cause and directed the parties to fix a date for further steps toward expeditious determination of the main 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 applicant has established a basis for conservatory orders barring the interested party from accessing the office of the CEO of Kenyatta National Hospital and its premises
  2. 2.Whether the petition would be rendered nugatory if the conservatory orders are not granted
  3. 3.Whether the prayer for an injunction against the interested party is properly framed

Key legal issues

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01

Threshold for grant of a conservatory order

Holding

The applicant failed to meet the threshold; no prima facie case was established and no complaint or adverse report existed to justify disciplinary action against the interested party

Reasoning

The Court found the EACC investigations ongoing and unconcluded, but noted there was no complaint or adverse report against the interested party to trigger the respondent's disciplinary powers under its HR policies, the Mwongozo Code, the Leadership and Integrity Act, 2012 and the Public Officers Ethics Act, 2003. The applicant's case rested on newspaper cuttings, which the respondent challenged as not credible. The Court therefore held that no prima facie case was established to keep the interested party out of office.

p. 4
02

Proper framing of an order directed at an interested party

Holding

The prayer was misconceived and untenable because it sought an order directed at the interested party without naming the interested party as a respondent

Reasoning

The applicant sought a restraining order barring the interested party from premises, yet the applicant argued the respondent held disciplinary power and did not seek an order compelling the respondent to act. The Court found it inappropriate to keep the interested party out of office where the respondent said it had received no report justifying disciplinary proceedings, and held the prayer misconceived in form.

p. 4

Legal principles established

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  • Conservatory orders are constitutional remedies in rem, not in personam, meant to preserve the subject matter of the dispute in situ
  • A conservatory order preserves the substratum of the suit so it is not rendered nugatory, and the applicant must show how the suit would be rendered nugatory absent the order

Court orders

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  1. 1.The application dated 29.05.2024 is dismissed with costs in the cause
  2. 2.Parties to fix a date for further steps for expeditious determination of the main petition

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 23(1) of the Constitution of Kenya read with rule 4, 23 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and rules 7(1) and 17 of the Employment and Labour Relations Court (Procedure) Rules, 2016

Relief refused

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Conservatory order barring the interested party from accessing the office of the CEO of Kenyatta National Hospital or its premises pending inter-partes hearing and pending determination of the Petition

No prima facie case established; the petition would not be rendered nugatory; the order as framed is misconceived as it is directed at the interested party who is not named as a respondent

p. 4

Costs

Dismissed with costs in the cause

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.

Thus, the order in the nature of a prohibitory or restraining injunction will not issue as prayed because no prima facie case has been established to keep the interested party out of ofice.
p. 4Refusal of conservatory injunction - no prima facie case
conservatory orders are not ordinary civil law remedies but are remedies provided for under the Constitution and they are not remedying between one individual as against another but are meant to keep the subject matter of the dispute in situ.
p. 4Nature of conservatory orders - in rem
In conclusion, the application is hereby dismissed with costs in the cause and parties to fix a date for further steps for expeditious determination of the main petition.
p. 4Final orders - dismissal with costs in the cause

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, "Tindi v Board of Directors, Kenyatta National Hospital; Kamuri (Interested Party) (Petition E081 of 2024) [2024] KEELRC 2060 (KLR)", Case Analysis (2024). Notice of Motion dated 29.05.2024 (within Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2060/eng@2024-07-26

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