Tindi v Board of Directors, Kenyatta National Hospital; Kamuri (Interested Party) (Petition E081 of 2024) [2024] KEELRC 2060 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the petition would be rendered nugatory if the conservatory orders are not granted
- 3.Whether the prayer for an injunction against the interested party is properly framed
Key legal issues
#Threshold for grant of a conservatory order
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
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.
Proper framing of an order directed at an interested party
The prayer was misconceived and untenable because it sought an order directed at the interested party without naming the interested party as a respondent
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.
Legal principles established
#- 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
#- 1.The application dated 29.05.2024 is dismissed with costs in the cause
- 2.Parties to fix a date for further steps for expeditious determination of the main petition
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
Costs
Dismissed with costs in the cause
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.
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.
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.
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.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.