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ELRCPartially AllowedJudicial Review Application (Notice of Motion dated 18th September 2024)

Abdi v Garissa County Public Service Board & another (Judicial Review Miscellaneous Application E049 of 2024) [2024] KEELRC 2798 (KLR)

Employment and Labour Relations Court
14 November 2024
2,142 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The ex parte applicant moved the Employment and Labour Relations Court at Nairobi by notice of motion dated 18th September 2024 seeking leave to apply for an order of prohibition against the respondents from conducting interviews, sittings or proceedings on shortlisted candidates for County Administrators and Deputy County Administrators, contending the recruitment violated reinstatement orders said to have been issued in ELRC No. E205 of 2022 and was marred by nepotism and favouritism. The respondents opposed, arguing the interviews had concluded on 20th September 2024 so prohibition would issue in vain; that ELRC No. E205 of 2022 had been dismissed after a Public Service Commission audit; that the motion contravened Order 53 Rule 1 of the Civil Procedure Rules; and that there was no arguable case. The applicant argued the application was not overtaken by events since no decision on the interviews had been made, and invoked Article 159(2)(d) against the procedural objection. The court held that orders restraining the interviews themselves were overtaken by events and could not be granted, but allowed the order prohibiting implementation of the interview results because the respondents had not shown they had acted on the results. Leave to apply for judicial review was granted, to operate as a stay against implementation of the interview results, with costs of the application reserved to the judicial review application.

Questions the Court framed

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

  1. 1.How does an order of prohibition work?
  2. 2.Has the application been overtaken by events?
  3. 3.Is the application bad in law?
  4. 4.Whether the applicant should be granted leave to apply for an order of prohibition against the respondents from conducting interviews, sittings or proceedings on impugned shortlisted candidates
  5. 5.Whether leave granted should operate as a stay

Key legal issues

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01

Whether the application to prohibit the interviews was overtaken by events

Holding

Yes - the interviews concluded on 20th September 2024 before the order could issue, so prohibition against conducting them could not be granted

Reasoning

The court noted the application sought to forestall interviews scheduled for September 2024. Since the interview date had passed, any orders restraining the interviews would be futile and were refused as overtaken by events.

p. 5
02

Whether prohibition could issue against implementation of the interview results

Holding

Yes - the respondents did not demonstrate they had already acted on the interview results, so leave with stay against implementation was granted

Reasoning

The court distinguished the concluded interviews from their outcome. Since the respondents' grounds of opposition did not state they had acted on the results, prohibiting implementation remained a live and effective remedy, and leave was granted to operate as a stay.

p. 5
03

Whether the application was bad in law for being brought by notice of motion instead of chamber summons

Holding

The objection did not defeat the application, given the constitutional injunction against undue regard to procedural technicalities

Reasoning

The applicant invoked Article 159(2)(d) of the Constitution, which requires that justice be administered without undue regard to procedural technicalities, and relied on authority holding that substance should be placed over procedure. No finding dismissing the application on this ground was made.

p. 3

Legal principles established

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  • A court may grant leave for judicial review to operate as a stay against the implementation of the results of an already-concluded process where the respondent has not shown that it has already acted on those results

Court orders

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  1. 1.Leave granted to the applicant to initiate a judicial review application
  2. 2.The leave shall act as a stay against the implementation of the results of the interview processes carried out by the Respondents
  3. 3.Costs of the application shall be in the judicial review application

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Supervisory jurisdiction of the High Court over public bodies (judicial review - orders of prohibition), with reference to Article 159(2)(d) of the Constitution and Order 53 of the Civil Procedure Rules

Relief refused

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Prohibition against conducting interviews, sittings or proceedings on impugned shortlisted candidates

The interviews had already been concluded on 20th September 2024, so the orders sought were overtaken by events

p. 5

Costs

Costs of this application shall be in the JR Application.

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.

Because the interview date has already passed, the orders being sought have already been overtaken by events and therefore cannot be granted
p. 5Overtaken by events - futility of prohibiting concluded interviews
The respondents in their grounds of opposition failed to indicate that they have already acted on the results of the interviews conducted. It is for this reason that I allow the order prohibiting the implementation of the results of the interview.
p. 5Prohibition against implementation of results still competent
The applicant is therefore granted leave to initiate a JR application which order will act as a stay against the implementation of the results of the interview processes carried out by the Respondents. Costs of this application shall be in the JR Application.
p. 5Final orders - leave granted, operating as stay

Issues in the judgment

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minor

Applicant's written submissions dated 7th October 2020, an apparent typographical error given the application is dated 18th September 2024

minor

The court granted a stay against implementation of the interview results while stating the orders sought were overtaken by events; the respondents contended the interviews were concluded but the court noted they had not acted on the results, creating an unresolved tension

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, "Abdi v Garissa County Public Service Board & another (Judicial Review Miscellaneous Application E049 of 2024) [2024] KEELRC 2798 (KLR)", Case Analysis (2024). Judicial Review Application (Notice of Motion dated 18th September 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2798/eng@2024-11-14

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