[2022] KEHC 2669 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MALINDI

CONSTITUTIONAL PETITION NO. 006 OF 2021

FORMERLY

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MOMBASA

CONSTITUTIONAL PETITION NO 001 OF 2021

FORMERLY

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT GARSEN

CONSTITUTIONAL PETITION NO 002 OF 2021

IN THE MATTER OF ARTICLES 2(1), 3(1), 10, 19, 20, 22, 23, 25 (C), 27, 28, 47, 48,50, 159, 165, 196 AND 236 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF ALLEGED CONTRAVENTION OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF VIOLATION OF THE RIGHT TO FAIR HEARING, DIGNITY AND PROTECTION FROM DISCRIMINATION AND SECURITY OF PERSONS

AND

IN THE MATTER OF SECTION 11 OF THE COUNTY GOVERNMENTS ACT, 2012

AND

IN THE MATTER OF STANDING ORDER NOS 69 AND 75 OF THE TANA RIVER COUNTY ASSEMBLY STANDING ORDERS

AND

IN THE MATTER OF A RESOLUSION TO IMPEACH THE SPEAKER OF TANA RIVER COUNTY, HONOURABLE MICHAEL JUSTINE NKADUDA

AND

IN THE MATTER OF THE COUNTY ASSEMBLY OF TANA RIVER

AND

IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTIONS ACT, 2015

BETWEEN

HON. MICHAEL JUSTINE NKADUDA........................................................PETITIONER

VERSUS

THE COUNTY ASSEMBLY OF TANA RIVER....................................1ST RESPONDENT

THE CLERK,

THE COUNTY ASSEMBLY OF TANA RIVER...................................2ND RESPONDENT

HON. MOHAMED BUYA YUSA...........................................................3RD RESPONDENT

HON. GALOLE SADDAM HUSSEIN..................................................4TH RESPONDENT

HON. ABDI ERGAMSO GOBU............................................................5TH RESPONDENT

RULING

1. This is an application by the Petitioner dated 14th December 2021 seeking seven (7) orders namely that: -

a) The court does certify the application as urgent and orders that service thereof be dispensed with in the first instance.

b) Pending the hearing of the application the court does order a stay of execution of its ruling delivered on 8th December 2021.

c) Pending the hearing and determination of the application the court does issue an order directing the 1st and 2nd Respondents to restore the Petitioner and his staff to the payroll.

d) Pending the hearing and determination of the application the court does issue an order directing the 1st and 2nd Respondent to pay the Petitioner and his staff the outstanding salaries from April 2021 till date.

e) This court does clarify the ruling and order made by the Hon. Mr. Justice Byram Ongaya on the 29th of October 2021.

f) This court does review and or vary and or set aside its order of 8th December 2021.

g) The court makes provision for costs of the application.

2. Prayer number one (1) was granted on 15th December 2021 but only to the extent that the application was certified urgent. The court directed the Petitioner to serve the Respondents with the application forthwith for inter-partes hearing on 21st December 2021.

3. No pronouncement was made in respect of prayer two (2). However, it is the court’s view that as this prayer was not granted on 15th December 2021, it has been overtaken by events. Consequently, prayers numbers one (1) and two (2) of the application are considered as spent.

4. The Respondents have opposed the application. They filed an affidavit in this respect dated 17th December 2021.

5. In this ruling, I have considered the grounds in support of the application under consideration, the affidavits by the parties and their submissions (both written and oral) to court.

6. As indicated above, prayers one (1) and (2) of the application are spent. Therefore, in this ruling, I will only consider the remaining prayers running from prayer three (3) to seven (7). I will consider the prayers distinctly or jointly in the form of issues for determination. I should add that although the parties have in their submissions variously isolated the issues for determination in the manner they perceive appropriate, I will vary them to the extent that I consider appropriate for the purposes of efficient delivery of this decision.

7. The first issue I wish to consider is whether there are sufficient grounds to warrant a review of the court’s ruling delivered on 8th December 2021 in the context of the parameters set out under section 16 of the Employment and Labour Relations Court Act as read with rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016. The grounds for the prayer for review appear to me to be that: the order for status quo for a period of 45 days was issued without invitation by the parties; that the court having found the impugned impeachment as unprocedural should not have issued an order of interim status quo as it did; and that the court’s ruling contains an error in so far as it mentions that Justice Ongaya’s ruling related to an application dated 26th April 2021 when in fact the ruling related to the application dated 10th May 2021.

8. I have considered this aspect of the application. First, the order sought to be reviewed was made pursuant to the application dated 15th November 2021. Prayer six (6) of the said application mandated the court to grant any further orders as it considered appropriate in the circumstances. Second, the court observed that this being a constitutional petition, the proceedings in the cause were governed by the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. Rule 3(8) of the said rules grants the court inherent power to issue orders that are necessary to meet the ends of justice. The court took the foregoing into consideration before it issued the orders of status quo for 45 days. Both the law and the parties to the application permitted and invited the court to proceed as it did. I therefore find that nothing turns on the contention that the court granted the orders in question without invitation as asserted.

9. But perhaps to elaborate further on the prayer, it is important to point out that the orders made by the court regarding the propriety of the impeachment of the Petitioner from office are interlocutory orders based on the preliminary evidence before the court. The court was alive to the fact that the legality of the impeachment was a question to be determined with finality in the decision that will follow the full hearing of the Petition. I therefore do not agree with the Petitioner’s position that the court has already found (with finality) the impeachment as unconstitutional and could not therefore issue the orders now sought to be reviewed.

10. In issuing the impugned orders of status quo, the court was alive to the following: -

a) The question of the constitutionality of the impeachment remains a live matter to be determined upon full hearing of the Petition.

b) The parties are at cross purposes whether the conservatory orders issued by Justice Byram Ongaya barring the gazzetement of the purported impeachment in effect reversed the process or stalled it midway. This disagreement in interpretation of the order has the potential of creating disharmony at the parties’ workplace with one seeking to resume office and the other resisting this attempt as was obvious from the positions they took in canvassing the application dated 15th November 2021.

c) The court as currently constituted is of concurrent jurisdiction with Ongaya J and it is undesirable for me to purport to interpret his ruling as to do so would amount to sitting on appeal in respect of the ruling. Such application will in terms of rule 33 of the Employment and Labour Relations Court (Procedure) Rules be best handled by Ongaya J who still serves in the coastal region of this court.

d) To avoid the ugly scenario presented in b) above and in view of the reality in c) above and there being a pending appeal against the ruling by Ongaya J before the Court of Appeal, it was, in my view, in the best interest of justice to hold matters as they were as parties seek to either apply for stay before the appellate court or seek review of the ruling dated 29th October 2021 before Ongaya J.

11. I am therefore reluctant to vacate or vary the orders in so far as they seek to temporarily hold the status quo obtaining. They are to run for 45 days from the date of issue to provide a window for the parties to move as appropriate.

12. I however, note that there is indeed an error in paragraphs 2 and 23 of the court’s ruling in so far as it variously refers to the date of the application determined before Ongaya J as 26th April 2021 and 27th April 2021. The correct date of the application is 10th May 2021. Accordingly, the ruling is reviewed to indicate the correct date of the application as 10th May 2021.

13. The next issue is whether I should order the Respondents to reinstate the Petitioner and his staff to the 1st Respondent’s payroll and whether the 1st Respondent should be ordered to pay the emoluments of the Petitioner and his staff withheld from April 2021.

14. First, I think that this is an issue that can only be ventilated fully upon the full hearing of the Petition. The question whether the Petitioner will ultimately be entitled to his pay will turn on whether the purported impeachment was lawful, a matter that will be determined upon hearing of the Petition.

15. Second, I am not sure why the Petitioner did not take up this matter in the application for conservatory orders. Although the Petitioner moved the court for conservatory orders on 26th April of 2021, the motion was later withdrawn and replaced with the one dated 10th May 2021. This was after the parties recorded consent on 4th May 2021 permitting them to amend their pleadings. The application was finally heard around 2nd June 2021 when parties sought to file written submissions in respect of it. At this time, it must have been already clear to the Petitioner that his salary from April 2021 had been withheld if at all. Why did he not seek to amend the application to include a prayer for reinstatement of his salary?

16. To seek these orders in a subsequent separate application is in my view to try the issues intended for interim adjudication by installments. This approach is in my view undesirable.

17. Commenting on the matter, the High Court in Okiya Omtatah Okoiti v Communications Authority of Kenya & 14 others [2015] eKLRsaid as follows: -

“I am in agreement [and] would only add that it is not proper for parties to have piecemeal litigation. A party ought to litigate in one suit all matters that belong to that subject in controversy and it is not sufficient therefore for the Petitioner to allege now that the issues he has raised for interpretation were not covered by the previous suit………..’’

18. This pronouncement, in my view, applies to applications in much the same way as it does to main suits. It is, in a loose sense, covered in the wider concept of res-judicata as elaborated by the Respondents in their submissions. On this, I can do no better that refer to the decision referred to by counsel in the case of Pop-In (Kenya) Ltd & 3 others v Habib Bank AG Zurich [1990] eKLR, which offers useful pointers in this respect. If the court were to permit the raising of interlocutory matters every so often even when such matters would have been ably raised through previously determined interlocutory applications, then it is not possible that the main suits will ever be determined.

19. The Petitioner also seems to pray that the court orders that the Petitioner’s staff salaries be reinstated. Yet, the question relating to the Petitioner’s staff is not the subject of litigation in the Petition before the court. This issue was first raised in the application for contempt of court dated 14th July 2021. Even then, it was only raised as a ground in support of the application for contempt but not as a prayer for relief from court (see ground 16 in the Notice of Motion and ground 23 in the Statement). Clearly, the Petitioner’s members of staff are not party to the cause. In view of the foregoing, the court has difficulty issuing orders in this regard.

20. The next question to consider is whether this court is the right forum to interpret or clarify the ruling and orders made on the 29th of October 2021 by the Hon. Mr. Justice Byram Ongaya. I have already made my observations on this matter in my ruling dated 8th December 2021.

21. To reiterate my earlier position, I enjoy concurrent jurisdiction with Justice Ongaya. Therefore, to be asked to interpret his decision places me in the awkward position of running the risk of sitting on appeal on his decision. The learned Judge is still serving in Mombasa where the ruling was rendered. As the court is within the coastal region, such application would only properly be taken up before him in terms of rule 33 of the Employment and Labour Relations Court (Procedure) Rules. Alternately, the Applicant can move the appellate court in the appeal as the ruling is already the subject of a pending appeal by the Respondents.

22. Reflecting on this question, the Court of Appeal inBellevue Development Company Ltd v Francis Gikonyo & 7 others [2018] eKLRsaid as follows: -

“……………..it would be a strange aberration for a judge to embark on what is essentially an examination of the judicial conduct and pronouncements of judges of the same status as himself, a task that is left to courts and judges of higher status in the hierarchy, by way of appeals.’’

23. Finally, I wish to encourage the parties to direct their energies towards prosecuting the main Petition in lieu of the myriad applications that have so far been presented to court. These applications, much as they may be well intended, only serve to delay the disposal of the main controversy. If the parties had initially focused on the Petition as opposed to the several applications, the matter would probably have been determined by now.

24. I will therefore dismiss the motion with costs to the Respondents.

DATED, SIGNED AND DELIVERED ON THE 2ND DAY OF FEBRUARY, 2022

B. O. M. MANANI

JUDGE

In the presence of:

Mr. Binyenya for the Petitioner

Mr. Juahe for the 1st to 5th Respondents

ORDER

In view of the declaration of measures restricting court operations due to the Covid-19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on 15th April 2020, this Ruling has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.

B. O. M. MANANI

JUDGE