[2018] KEELRC 29 (KLR)
The court found that the claimant's resignation was voluntary and in compliance with section 43(5) of the Elections Act, which was in force at the time. The orders in Kericho ELRC No.1 of 2017, which allowed public officers to remain in service while seeking elective office, were issued after the claimant had...
Source-derived case information.
- Citation
- [2018] KEELRC 29 (KLR)
- Parties
- Claimant: Franciscar Jelagat Kamuren; Respondent: Governor, County Government of Nakuru; Respondent: County Secretary, County Government of Nakuru; Respondent: Nakuru County Public Service Board
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 436 of 2017
- Procedural Posture
- Employment Cause / Ruling on Interim Orders and Directions Pending Appeal
- Outcome
- Interim orders vacated; matter to be mentioned for further directions after appeal.
- Judges
- M Mbarũ
- Legal Topics
- Public Officer Resignation, Elections Act Compliance, Reinstatement, Interim Orders, Retrospective Application, Stay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Franciscar Jelagat Kamuren
Claimant
Governor, County Government of Nakuru
Respondent
County Secretary, County Government of Nakuru
Respondent
Nakuru County Public Service Board
Respondent
Procedural Posture
Employment Cause / Ruling on Interim Orders and Directions Pending Appeal
Legal Issues
- 1 Whether the claimant is entitled to reinstatement after resignation to join politics under section 43(5) of the Elections Act.
- 2 Whether the court can grant interim orders for reinstatement pending the outcome of an appeal in a related matter.
- 3 Whether the orders in Kericho ELRC No.1 of 2017 can be applied retrospectively to the claimant's resignation.
Ratio Decidendi
The court found that the claimant's resignation was voluntary and in compliance with section 43(5) of the Elections Act, which was in force at the time. The orders in Kericho ELRC No.1 of 2017, which allowed public officers to remain in service while seeking elective office, were issued after the claimant had already resigned and cannot be applied retrospectively. Furthermore, the judgment in Kericho ELRC No.1 of 2017 is currently stayed by the Court of Appeal in Civil Application No.62 of 2017, and any action based on that judgment would be premature and potentially contrary to the appellate process. As such, the court vacated the interim orders previously granted to the claimant and...
Court Disposition
Interim orders vacated; matter to be mentioned for further directions after appeal.
Orders
- The interim orders stopping the filling of the claimant's former position are vacated.
- The matter shall be mentioned for further directions in 45 days.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAKURU
CAUSE NO. 436 OF 2017
FRANCISCAR JELAGAT KAMUREN................................................................CLAIMANT
VERSUS
GOVERNOR, COUNTY GOVERNMENT OF NAKURU.......................1STRESPONDENT
COUNTY SECRETARY, COUNTY GOVERNMENT OF NAKURU....2ND RESPONDENT
NAKURU COUNTY PUBLIC SERVICE BOARD...................................3RDRESPONDENT
RULING
Judgement herein is due following both parties closing each case. A ruling shall subsist.
The substance of the claim is that the claimant was an employee of the 3rd respondent and by letter dated 6th November, 2016 the claimant gave a written notice of resignation with effect from 7th February, 2017 to join politics in compliance with the provisions of sections 13(5) of the Elections Act.
In Kericho ELRC No.1 of 2017 the provisions of section 43(3) were challenged and the court on 18th January, 2017 issued an order allowing for all public officer servants intending to join politics to continue working notwithstanding the provisions of section 43(5) of the Elections Act.
On 14th September, 2017 the claimant wrote to the respondents seeking reinstatement as member to the 3rd respondent and which was ignored. On 4th October, 2017 the claimant issued the respondents with formal demand notice for reinstatement but they have refused to comply.
On this basis, the claimant moved the court seeking interim orders to be reinstated, to stop the filling of the position she held and seeking to rely on the judgement in Kericho ELRC No.1 of 2017.
The respondent replied to the claim and opposed the same on the grounds that the claimant was appointed as member of the 3rdrespondent with effect from 28thMay, 2013 and after which she gave a written notice of resignation with effect from 7thFebruary, 2017 to join politics in compliance with section 43(5) of the Elections Act. The resignation was voluntary and pegged on section 43(5) of the Elections Act. The law was in force at the time of the notice and the respondents were bound to comply and enforce the provisions.
The defence is also that by the time the court orders upon which the claim herein is premised were issued, the claimant had resigned and these orders cannot apply retrospectively as the orders were issued after the fact. The subject order relied upon is subject of an Appeal and its execution has been stayed videNyeri CivilApplication No.62 of 2017.
In preparing judgement herein, I made reference toCivil Application No.62 of 2017Court of Appeal (Nyeri)where there is and order of stay of the orders in Kericho ELRC No.1 of 2017 and further there is stay to proceedings with relation to the same.
Thus guided and noting the basis of the claim herein and to ensure the rules of law and completeness, to issue judgement herein would go contrary to matters brought to the attention of the court during these proceedings and such would not aid justice.
As noted above, pending hearing of the claim herein, the claimant was issued with interim orders stopping the filling of position held before resignation. The circulars issued by the Head of Public Service and PS, Devolution and requiring the officers/officer affected by the judgement in Kericho ELRC No.1 of 2017 to reinstate and where such positions have been filled to redeploy officers affected by the provisions of section 43(5) of the Elections Act such as the claimant.
Invariably therefore, upon the Court of Appeal addressing the matters before in inCivil Application No.62 of 2017 Court of Appeal (Nyeri),the subject suit and claims herein shall thus be dealt. The import of the suit herein is far reaching and ofpublic interest, to judge contrary or agree as held in Kericho ELRC No.1 of 2017 would either negate orders due inCivil Application No.62 of 2017 Court of Appeal(Nyeri).
On this basis, the claimant will have her day one way or the other upon conclusion of Civil Application No.62 of 2017 Court of Appeal (Nyeri). For this reason, the interim orders herein will not serve any useful purpose by remaining alive. Such orders are vacated. Matter shall be mentioned for further directions in 45 days.
Delivered in open court at Nakuru this 30thday of July, 2018.
M. MBARU
JUDGE
In the presence of:
Court Assistants: Nancy & Martin
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