[2023] KEELRC 493 (KLR)
The court found that the ex-parte applicant failed to file the substantive judicial review application within the 21-day period as ordered, and did not provide convincing grounds for the delay. The court emphasized that interim orders, such as a stay of implementation, are intended to preserve the status quo only...
Source-derived case information.
- Citation
- [2023] KEELRC 493 (KLR)
- Parties
- Applicant: Mathews Juma; Respondent: Cabinet Secretary Ministry of Health; Respondent: The Association of Public Health Officers Kenya; Respondent: Public Health Officers and Technicians Council; Respondent: The Honourable Attorney-General; Interested Party: Dr. John Kariuki; Interested Party: Mathew Kore; Interested Party: Mohamed Duba; Interested Party: Antony Ngaira; Interested Party: Dr. Susan Mambo
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Miscellaneous Application E022 of 2022
- Procedural Posture
- Judicial Review Miscellaneous Application / Ruling on Application to Extend Time and to Vacate Interim Orders
- Outcome
- Application for extension of time dismissed; interim orders set aside; respondents at liberty to implement Gazette Notice No. 9331; no order as to costs.
- Judges
- J Rika
- Legal Topics
- Judicial Review Timelines, Extension of Time, Stay of Implementation, Board Appointments, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mathews Juma
Applicant
Cabinet Secretary Ministry of Health
Respondent
The Association of Public Health Officers Kenya
Respondent
Public Health Officers and Technicians Council
Respondent
The Honourable Attorney-General
Respondent
Dr. John Kariuki
Interested Party
Mathew Kore
Interested Party
Mohamed Duba
Interested Party
Antony Ngaira
Interested Party
Dr. Susan Mambo
Interested Party
Procedural Posture
Judicial Review Miscellaneous Application / Ruling on Application to Extend Time and to Vacate Interim Orders
Legal Issues
- 1 Whether the ex-parte applicant established sufficient grounds for extension of time to file the substantive judicial review application.
- 2 Whether the interim stay orders should be vacated due to non-compliance with the 21-day filing period.
- 3 Whether the continued operation of stay orders without a substantive application constitutes abuse of court process.
Ratio Decidendi
The court found that the ex-parte applicant failed to file the substantive judicial review application within the 21-day period as ordered, and did not provide convincing grounds for the delay. The court emphasized that interim orders, such as a stay of implementation, are intended to preserve the status quo only pending the timely prosecution of the substantive application. Allowing the applicant to seek further extension without justification would undermine the integrity of judicial review timelines and constitute an abuse of process. Consequently, the court set aside all orders previously granted in favour of the applicant and allowed the respondents to proceed with the implementation...
Court Disposition
Application for extension of time dismissed; interim orders set aside; respondents at liberty to implement Gazette Notice No. 9331; no order as to costs.
Orders
- The orders given by the court on 22nd August 2022 and all consequential orders in favour of the ex-parte applicant are set aside.
- The respondents are at liberty to implement Gazette Notice Number 9331 of August 5, 2022.
Full Case Text
Judgment text and source record
42 paragraphs
Juma v Cabinet Secretary Ministry of Health & 3 others; Kariuki & 4 others (Interested Parties) (Judicial Review Miscellaneous Application E022 of 2022) [2023] KEELRC 493 (KLR) (28 February 2023) (Ruling)
Neutral citation: [2023] KEELRC 493 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Judicial Review Miscellaneous Application E022 of 2022
J Rika, J
February 28, 2023
Between
Mathews Juma
Applicant
and
Cabinet Secretary Ministry of Health
1st Respondent
The Association of Public Health Officers Kenya
2nd Respondent
Public Health Officers and Technicians Council
3rd Respondent
The Honourable Attorney-General
4th Respondent
and
Dr. John Kariuki
Interested Party
Mathew Kore
Interested Party
Mohamed Duba
Interested Party
Antony Ngaira
Interested Party
Dr. Susan Mambo
Interested Party
Ruling
1. The Ex-Parte Applicant was granted leave to apply for orders of certiorari, mandamus, and prohibition against the respondents, on August 22, 2022.
2. Leave so granted was to operate as an order for stay of implementation of Gazette Notice No. 9331 of August 5, 2022, through which the 1st respondent announced the appointment of the interested parties, as members of the Board of Directors of the 3rd respondent.
3. The Substantive Application was to be filed within 21 days. The ex-parte applicant did not do so.
4. The respondents and the interested parties have moved the court to vacate the orders granted in favour of the ex parte applicant, on the ground that 21 days lapsed on September 12, 2022.
5. The ex- parte applicant filed an Application dated September 30, 2022, asking the court to allow him to filed the substantive motion out of time.
6. Parties agreed to have the application by the respondents; the preliminary objection by the 2nd, 3rd and 4th interested party; and, the Application for extension of time by the ex parte applicant, considered on the strength of their affidavits and written submissions. The Preliminary objection raises similar grounds to the application filed by the respondents. The matter was last mentioned on December 14, 2022, when Parties confirmed filing of their Submissions.
The Court Finds 7. The ex-parte applicant was granted specific period of time, of 21 days to file and serve his Substantive Application. Leave was to operate as stay of implementation of the legal instrument through which the interested parties were appointed as board members, of the 3rd respondent.
8. The ex parte applicant has not established any convincing ground why he did not file the substantive application within the stipulated time. He was aware that he had obtained orders, which were to operate as stay of implementation of the decision which is sought to be quashed. Fair hearing required that the Parties against whom the orders had been obtained, are made aware of the matter subject of the Judicial Review, and that they are given a fair opportunity to answer to those allegations substantively.
9. The ex parte applicant plea for the court to grant leave to bring his substantive application out of time, is in abuse of the process of the court. The court cannot grant leave upon leave, to a Party who appears intent of abusing the orders of stay of implementation of Gazette Notice Number 9331.
10It is ordered :-a.The Orders given by the court on 22nd day of August 2022, and all consequential orders given in favour of the ex-parte applicant are set aside.b.The respondents are at liberty to implement Gazette Notice Number 9331 of August 5, 2022. c.No order on the costs.
DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY AT NAIROBI, THIS 28TH DAY OF FEBRUARY 2023. JAMES RIKAJUDGE