[2021] KEELRC 1566 (KLR)
The court held that it lacked jurisdiction to entertain the application for stay after having already declined to grant leave to operate as stay at the leave stage. The application for leave to operate as stay was res judicata, as the parties had been heard and the issue determined on its merits. The court was...
Source-derived case information.
- Citation
- [2021] KEELRC 1566 (KLR)
- Parties
- Applicant: Republic; Respondent: Judicial Service Commission; Applicant: Sheria Mtaani Na Shadrack Wambui; Applicant: Nadi Boru Mohammed
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Application E003 of 2021
- Procedural Posture
- Judicial Review Application / Ruling on Application for Stay Post Leave
- Outcome
- application dismissed with costs to the respondent
- Judges
- Nzioki wa Makau
- Legal Topics
- Judicial Review, Stay of Administrative Decision, Recruitment Processes, Res Judicata
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Judicial Service Commission
Respondent
Sheria Mtaani Na Shadrack Wambui
Applicant
Nadi Boru Mohammed
Applicant
Procedural Posture
Judicial Review Application / Ruling on Application for Stay Post Leave
Legal Issues
- 1 Whether the court has jurisdiction to grant stay after leave was declined to operate as stay.
- 2 Whether the application for leave to operate as stay is res judicata.
Ratio Decidendi
The court held that it lacked jurisdiction to entertain the application for stay after having already declined to grant leave to operate as stay at the leave stage. The application for leave to operate as stay was res judicata, as the parties had been heard and the issue determined on its merits. The court was therefore functus officio on the question of stay, and the motion before the court was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The motion for stay is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
25 paragraphs
Republic v Judicial Service Commission; Sheria Mtaani na Shadrack Wambui & another (Exparte Applicants) (Judicial Review Application E003 of 2021) [2021] KEELRC 1566 (KLR) (28 April 2021) (Ruling)
Republic v Judicial Service Commission Ex parte Sheria Mtaani Na Shadrack Wambui & another [2021] eKLR
Neutral citation: [2021] KEELRC 1566 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Judicial Review Application E003 of 2021
Nzioki wa Makau, J
April 28, 2021
Between
Republic
Applicant
and
Judicial Service Commission
Respondent
and
Sheria Mtaani Na Shadrack Wambui
Exparte Applicant
Nadi Boru Mohammed
Exparte Applicant
Ruling
1. The Application before me for determination is the Ex parte Applicants’ notice of motion application dated 17th February 2021 seeking stay of the Respondent’s decision regarding the recruitment of 50 Resident Magistrates. At the time leave was sought and granted, the learned Judge seized of the matter did not grant leave to operate as stay. As such this motion now canvasses the issue of stay post grant of leave. The Applicants assert that the determination would be rendered nugatory if the stay sought is not granted.
2. The Judicial Service Commission in a replying affidavit sworn by its Secretary the hon. Anne Amadi Chief Registrar of the Judiciary
3. In this case, it being clear that leave to apply for judicial review orders having been granted by this Court and the substantive motion having been filed, the chamber summons application for leave and attendant stay is spent. This Court is therefore bereft of jurisdiction to entertain a part only of the chamber summons application that was substantially dealt with by the Court on hearing the ex parte Applicants, as the application is incapable of truncation. I am of the firm view that the application for leave to operate as a stay is res judicata, the same having been categorically declined by the Court and this Honourable Court as presently constituted is ipso facto, functus official on the question of leave operating as stay as the parties were heard on the same on merit. The fate that befalls the motion before me is dismissal with costs to the Respondent.
It is so ordered.
DATED AND DELIVERED AT NAIROBI THIS 28TH DAY OF APRIL 2021NZIOKI WA MAKAUJUDGE