Republic v Chief Magistrates Court Nakuru & another; Elemech Engineering Company Limited & another (Interested Parties); Muthendu (Exparte Applicant) (Judicial Review E012 of 2024) [2025] KEELRC 1703 (KLR)
The bottom line
#A Kenyan court set aside a magistrate's orders that clashed with the Employment Court's decisions, but refused to punish anyone for contempt because the original order was unclear.
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 orders issued by Hon. R. Kefa on 31st January 2025 in Nakuru MC ELRC E073 of 2022 should be declared irregular and set aside/lifted
- 2.Whether the Interested Parties are in contempt of the court's orders issued on 17th December 2024 and should be punished accordingly
- 3.Whether the application is defeated by Section 9(2) of the Fair Administrative Actions Act and Rules 10(a) & (b) of the Fair Administrative Rules
Key legal issues
#Validity of subordinate court orders issued contrary to a superior court's stay orders
The subordinate court orders of 31st January 2025 were set aside because a lower court cannot issue orders going against the ELRC, a superior court of equal status to the High Court under Article 162(2) of the Constitution.
The court traced the litigation history: the Interested Parties failed to meet conditions for stay granted by Rika J on 18th October 2024, had successive applications rejected by the High Court, then obtained stay/restraining orders from the subordinate court. The court found forum shopping and held that judicial hierarchy barred the magistrate's orders from standing against the superior court's orders.
Whether the Interested Parties were in contempt of the 17th December 2024 orders
Contempt was not proved. The court found the prayer for contempt not established and declined to punish the Interested Parties.
Contempt requires a clear, unambiguous and valid order, knowledge, wilful disobedience and proof beyond reasonable doubt. The 17th December 2024 order referenced Nakuru MC ELRC No. E074 OF 2024, a non-existent case, rendering it ambiguous; the court could not find a valid order was knowingly breached.
Whether Section 9(2) of the Fair Administrative Actions Act and Rules 10(a) & (b) bar the application
The court found the application merited, implicitly rejecting the objection; the Applicant asserted the judicial review was grounded in Article 165(6) of the Constitution and Order 53, invoking supervisory jurisdiction over a subordinate court, not the review of an administrative action.
The Interested Parties argued the suit was barred by the exhaustion and res judicata-type provisions of the Fair Administrative Actions Act and Rules. The Applicant countered that the JR does not involve the Fair Administrative Actions Act but the superior court's supervisory jurisdiction. The court did not adopt the objection and allowed prayer 3.
Forum shopping by the Interested Parties
The court found clear forum shopping: after stay was rejected by the High Court, the Interested Parties obtained functionally identical restraining/stay orders from the subordinate court under differently couched prayers.
The court found the Interested Parties, having failed to meet conditions for stay before the ELRC and having applications rejected, rushed to the subordinate court and obtained restraining orders that were effectively stay of execution orders. The court held it was improper to seek from the subordinate court orders the superior court had declined to grant.
Legal principles established
#- Subordinate courts cannot issue orders contrary to or override the decisions/orders of superior courts such as the ELRC
Court orders
#- 1.Prayer No. 3 of the Notice of Motion dated 5th February 2025 is granted (setting aside/lifting the orders issued by Hon. R. Kefa on 31st January 2025 in Nakuru MC ELRC E073 of 2022)
- 2.The prayer for contempt is not allowed; no punishment is meted on the Interested Parties
- 3.Costs of the application to be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 165(6) of the Constitution and Order 53 of the Civil Procedure Rules (supervisory jurisdiction over subordinate courts); Article 162(2) on ELRC's status as a superior court
Relief refused
#Prayer 4 - declaration that the Interested Parties are in contempt of the orders of 17th December 2024 and punishment accordingly
The contempt was not proved to the required standard; the stay order referenced a non-existent case (Nakuru MC ELRC No. E074) and was ambiguous.
Costs
Costs of the application will be 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.
In view of the foregoing, the court finds that the application dated 5th February 2025 is merited and is allowed as follows:
Prayer No. 3 is granted.
The prayer for contempt is not proved and so the same is not allowed and no punishment will be meted on the Interested Parties.
The costs of the application will be in the cause.
The court finds there was clear forum shopping by the Interested Parties.
The court is of the view that the lower court orders cannot go against the ELRC order in accordance with Article 162(2) of the Constitution.
Issues in the judgment
#Inconsistent case numbers: the 17th December 2024 leave order refers to Nakuru MC ELRC No. 074 OF 2024, a non-existent case, while the proceedings concern Nakuru MC ELRC No. E073 of 2022; the judgment itself acknowledges this ambiguity.
Paragraph 8 refers to adverse orders in Nakuru MC ELRC No. E073 of 2023, inconsistent with the 2022 case number used elsewhere.
The ex-parte Applicant's averments state the ELRC order of 17th December 2024 stayed proceedings, while the actual order quoted shows the stay was conditional ('provided there were to be stay') and referenced the wrong case number.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Chief Magistrates Court Nakuru & another; Elemech Engineering Company Limited & another (Interested Parties); Muthendu (Exparte Applicant) (Judicial Review E012 of 2024) [2025] KEELRC 1703 (KLR)", Case Analysis (2025). JR E012 of 2024 (Judicial Review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1703/eng@2025-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.