Beatrice Nelima Lukorito v Pauline Chemutai, Assistant County Commissioner Keiyo Division, County Commissioner Trans Nzoia County, Deputy County Commissioner Kwanza Sub-County & Attorney General

RULING 1. By a Notice of Motion dated 23 rd June 2026, brought under sections 3 and 63(e) of the Civil Procedure Act, Order 40 rules 1, 2, 3, 4 and 5 of the Civil Procedure Rules, and all other enabling provisions of the law, the Applicant, Beatrice Nelima Lukorito, seeks the following orders: i. That the application be certified urgent and heard ex parte in the first instance. ii. That a temporary injunction be issued restraining the Respondents, their servants and/or agents from installing the 1st Respondent, Pauline Chemutai, as Assistant Chief Grade II, Kapkoi Location, Kwanza Sub-County, Trans Nzoia County, pending the hearing and determination of this suit. iii. That a temporary injunction be issued restraining the Respondents, their servants and/or agents from installing the 1st Respondent, Pauline Chemutai, as Assistant Chief Grade II, Kapkoi Sub-Location, Kapkoi Location, Kwanza Sub-County, Trans Nzoia 2 KTL ELRC CAUSE NO. E011 OF 2026 RULING

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County, pending the hearing and determination of this suit. iv. 2. That costs of the application be provided for. The application is premised on the grounds set out on the face of the Notice of Motion to wit; that, by a letter dated 15th January 2025, the Applicant was validly appointed as Assistant Chief, Kapkoi Sub-Location and was awaiting formal documentation; that the Respondents unlawfully and irregularly appointed the 1st Respondent to the position and lastly, that it is in the interests of justice that the orders sought be granted. 3. The application is supported by the Applicant’s affidavit sworn on 23rd June 2026 in which she deposes that she is a resident of Kapkoi Sub-Location, Kapkoi Location, Kwanza Sub-County, within Trans Nzoia County and that through an advertisement dated 9th August 2024, the 2nd to 4th Respondents invited applications for the position of Assistant Chief Grade II for Kapkoi Sub-Location which position she applied for and was subsequently invited for an interview through a letter dated 18th September 2024. 3 KTL ELRC CAUSE NO. E011 OF 2026 RULING

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4. She contends that following the interview, she was validly appointed to the position and was only awaiting formal documentation but however, the same position was readvertised on 17th November 2025 and following the subsequent recruitment process, the 1 st Respondent was appointed. 5. The Applicant further avers that the 1 st Respondent is not a resident of Kapkoi Sub-Location but hails from Maliki SubLocation, a neighbouring sub-location. It is therefore her contention that the 1st Respondent does not qualify to be appointed as an Assistant Chief Grade II as she did not meet the threshold set in the advertisement. 6. The Court was urged to allow the application and grant the orders sought. 7. The application is opposed. The 1 st Respondent filed her Replying Affidavit sworn on 30th June 2026 and averred that vide an advertisement dated 9 th August 2024, the 2nd to 4th Respondents invited suitably qualified persons to apply for the position of Assistant Chief Grade II for Kapkoi SubLocation. 4 KTL ELRC CAUSE NO. E011 OF 2026 RULING

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8. The 1st Respondent asserts that on 25th September 2024, she attended the interview alongside candidates, including the Applicant. Respondent, the interview several other According to the 1 st process was marred by numerous irregularities and illegalities, including a lack of transparency, favouritism and procedural breaches contrary to the requirements of fair administrative action. 9. It is the 1st Respondent’s case that together with the other candidates, except the Applicant, she promptly petitioned the relevant authorities to cancel the recruitment exercise and conduct it afresh. 10. The 1st Respondent states that, upon being presented with evidence of the alleged irregularities and malpractices, the Ministry of Interior and National Administration resolved to repeat the recruitment exercise. She maintains that the Ministry never issued the Applicant with a letter of appointment. 11. It is the 1st Respondent’s further contention that the recruitment process commenced afresh and new applicants were invited to apply for the position whereupon fresh 5 KTL ELRC CAUSE NO. E011 OF 2026 RULING

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interviews were conducted on 3rd manner that was fair, December 2025 in a transparent and free from malpractice. 12. The 1st Respondent asserts that following the fresh recruitment exercise, she was appointed to the position of Assistant Chief with effect from 2nd April 2026. 13. She maintains that she is a bona fide resident of Kapkoi Sub-Location, as evidenced by her national identity card. 14. It is the 1st Respondent’s further contention that the Applicant participated in the fresh interview conducted on 3rd December 2025 and thereby acknowledged the invalidity of the initial recruitment exercise. She thus argues that the Applicant waived any rights or benefits allegedly arising from the first interview. 15. Pursuant to the directions of this court issued on 1 st July 2026, the application was canvassed by way of written submissions. The Respondents’ submissions are dated 28 th July 2026. It appears the Claimant did not file submissions. Determination 6 KTL ELRC CAUSE NO. E011 OF 2026 RULING

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16. I have carefully considered the application, the affidavits both in support and against and the submissions on record. The main issue for determination is whether the Applicant has satisfied the conditions for the grant of a temporary injunction. 17. The principles governing the grant of a temporary injunction were settled in Giella v Cassman Brown & Co. Ltd [1973] EA 358. An applicant must establish a prima facie case with a probability of success, demonstrate that she stands to suffer irreparable injury which cannot adequately be compensated by an award of damages and, where the Court is in doubt, show that the balance of convenience lies in her favour. 18. The meaning of a prima facie case was considered by the Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125, where the court stated: “A prima facie case in a civil application includes but not confined to a genuine and arguable case. It is a case which on the material presented to court, a tribunal properly 7 KTL ELRC CAUSE NO. E011 OF 2026 RULING

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directing itself will conclude there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” 19. The Court of Appeal further expounded on the principles governing interlocutory injunctions in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, holding that the three conditions are distinct and sequential hurdles which an applicant must surmount. The court observed: “These are the three pillars on which rests the foundation of any order of injunction interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Ltd v Afraha Education Society [2001] 1 EA 86. If the applicant establishes a prima facie case, that alone is not sufficient basis to grant an interlocutory injunction. The court must further be satisfied that the injury the respondent will suffer, in the 8 KTL ELRC CAUSE NO. E011 OF 2026 RULING

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event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law are an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit ‘leap-frogging’ by the applicant to injunction directly without crossing the other hurdles in between. It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or both that the question of balance of convenience would arise.” 20. In the instant case, the Applicant’s case is that she was validly appointed as Assistant Chief for Kapkoi Sub-Location following the recruitment exercise conducted in September 2024. She relies on a letter dated 15 th January 2025, which she contends communicated her appointment, although 9 KTL ELRC CAUSE NO. E011 OF 2026 RULING

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she asserts that she was still awaiting formal documentation. 21. On her part, the 1st Respondent disputes that the Applicant was appointed to the position. It is her position that the initial recruitment process was cancelled following complaints of irregularities and that no formal letter of appointment was issued to the Applicant. She states that a fresh recruitment process was conducted as a result of which she was appointed with effect from 2nd April 2026. 22. At this interlocutory stage, the Court is not required to make a finding concerning the legality of either of the recruitment exercises. Such finding can only be made after the parties have presented their full evidence at the hearing. The Court must nevertheless determine whether the material presently before it disclose an apparent right in favour of the Applicant that requires protection pending the determination of the suit. 23. Although the Applicant avers that she was validly appointed, the circumstances surrounding the letter dated 15th January 2025, the nature and legal effect of that letter 10 KTL ELRC CAUSE NO. E011 OF 2026 RULING

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and whether it constituted a formal appointment are contested matters. The Applicant herself states that she was awaiting formal documentation. The evidence at this stage does not establish that the initial recruitment process resulted in a completed and legally effective appointment. 24. It is also not disputed that the position was subsequently re-advertised and fresh interviews were conducted on 3 rd December 2025. The 1st Respondent avers that the Applicant participated in the second interview. The Applicant’s participation in that process, if ultimately established, raises a serious question as to whether she accepted that the initial recruitment process had been cancelled or abandoned. That issue, however, is best determined at the substantive hearing. 25. The Applicant also contends that the 1 st Respondent was ineligible for appointment because she is not a resident of Kapkoi Sub-Location. In response, the 1 st Respondent produced a copy of her national identity card marked PC2, which she contends confirms that she is a resident of the said sub-location. The question of her actual place of 11 KTL ELRC CAUSE NO. E011 OF 2026 RULING

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residence is therefore contested and cannot conclusively be determined on affidavit evidence at this stage. 26. Notably, the 1st Respondent’s evidence is that she was appointed to the position with effect from 2 nd April 2026. The present application was filed on 23 rd June 2026, more than two months after the appointment had taken effect. Since the 1st Respondent had already been appointed by the time the application was instituted, an order restraining her appointment or installation would serve no practical purpose. To the extent that the impugned appointment had already taken effect, the prayers sought have been overtaken by events. 27. Furthermore, prohibitory the orders injunctions, sought, would though framed as effectively suspend or dislodge the 1st Respondent from a position to which she had already been appointed. Such an order would be mandatory in substance and would alter and not preserve, the prevailing state of affairs. A mandatory injunction at an interlocutory stage may only be granted in clear and exceptional circumstances. No such exceptional 12 KTL ELRC CAUSE NO. E011 OF 2026 RULING

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circumstances have been demonstrated in the present case. 28. I am therefore not persuaded that the Applicant has established a prima facie case with a probability of success warranting the grant of the temporary injunction sought. In addition, the Applicant has not demonstrated the nature of the irreparable injury she is likely to suffer if the injunction is not granted. 29. Regarding the third limb on a balance of convenience, the evidence on record shows that the 1 st Respondent had already been appointed to the position before the filing of the application. The balance of convenience therefore favours maintaining the prevailing position pending the hearing and determination of the suit. Suspending the 1 st Respondent at this stage would disrupt the discharge of public administrative functions and would amount to granting substantially final relief before the parties’ respective claims have been fully heard. 30. It is therefore my considered view that the legality of the cancellation of the initial recruitment exercise, the legal 13 KTL ELRC CAUSE NO. E011 OF 2026 RULING

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effect of the letter dated 15 th January 2025, the Applicant’s alleged participation in the subsequent recruitment process, and the eligibility of the 1 st Respondent are matters that ought to be determined upon the hearing of the substantive suit. 31. Accordingly, the Notice of Motion dated 23 rd June 2026 is devoid of merit and is hereby dismissed. 32. Costs of the application shall abide the outcome of the substantive suit. 33. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 24TH DAY OF SEPTEMBER, 2026 MAUREEN ONYANGO JUDGE 14 KTL ELRC CAUSE NO. E011 OF 2026 RULING

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