[2024] KEELRC 13206 (KLR)

Rotich v County Public Service Board Narok County & 3 others; Koech & 7 others (Interested Parties) (Petition E022 of 2023) [2024] KEELRC 13206 (KLR) (26 November 2024) (Ruling)

Neutral citation: [2024] KEELRC 13206 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nakuru

Petition E022 of 2023

J Rika, J

November 26, 2024

Between

Simon Kiplangat Rotich

Petitioner

and

The County Public Service Board Narok County

1st Respondent

The Governor Narok County

2nd Respondent

The County Secretary Narok County

3rd Respondent

The Deparment of Administration & Public Service Management

4th Respondent

and

Felix Koech

Interested Party

Jeremy Ng'eny

Interested Party

Richard Tanui

Interested Party

Joseph Kurui

Interested Party

Kipkoech Koros

Interested Party

Kiplangat Biwott

Interested Party

Joseph Bett

Interested Party

Benerd Rono

Interested Party

Ruling

1. Judgment in this Petition was delivered on 31st July 2024.

2. The Court granted the Petition, declaring the appointment of the 5th to 8th Interested Parties as ward administrators in Narok, illegal, invalid and void.

3. The Court also granted an order for reinstatement of the 1st to 4th Interested Parties as ward administrators, positions the 1st to 4th Interested Parties held, prior to the appointment of the 5th to 8th Interested Parties.

4. The 1st to 4th Interested Parties were assigned other public service positions by the 1st Respondent, on similar terms and conditions of service as previously enjoyed, in the positions of ward administrators. The only change was in their job titles and job descriptions.

5. The 2nd and 3rd Respondent filed a Notice of Appeal and Memorandum of Appeal, dated 31st July 2024 and 7th August 2024 respectively.

6. They applied for typed proceedings of the Court which from the record, are ready.

7. They applied for an order of stay of execution of the Judgment pending hearing and determination of their Appeal, through an application dated 6th August 2024.

8. The application is founded on the affidavit of John Maiyiani Tuya, County secretary of the Narok County Government, sworn on 6th August 2024.

9. Tuya restates the history of the dispute, the findings of the Court, and underscores that the Applicants have established adequate grounds, warranting an order for stay of execution of Judgment. He emphasizes that none of the Parties will be prejudiced by grant of an order of stay of execution of the Judgment. The 1st to 4th Interested Parties shall continue to serve in different capacities, earning the same remuneration. Execution of the Judgment would result in termination of employment of the 5th to 8th Interested Parties’ contracts, exposing the Respondents to huge financial losses arising from potential employment claims. Public service would be disrupted. The Applicants submit that they have an arguable Appeal with high probability of success; they approached the Court for an order of stay of execution timeously; and they would be willing to abide by any conditions imposed by the Court, on grant of the order.

10. The Petitioner filed a replying affidavit, sworn on 23rd September 2024. His position is that the application is vexatious, non-starter and scandalous. The Intended Appeal does not have the remotest chance of success. Nothing would be rendered nugatory, if execution of the Judgment is not stayed. Appointment of the 5th to 8th Interested Parties as ward administrators, was unconstitutional. The Applicants have not established what loss would be suffered, if the Judgment is executed.

11. Further, the Petitioner submits that an order of stay of execution cannot issue, because an order of reinstatement is self-executory. Declaratory orders similarly, are self-executory. No amount of security deposited in Court, can remedy violation of the constitutional right to work and labour laws.

12. Parties agreed to have the application considered and determined on the strength of their affidavits and submissions on record.

The Court Finds: - 13. All decisions which are appealable, can be stayed pending hearing and determination of an Intended Appeal.

14. An order of stay of execution, suspends or freezes, immediate implementation of the Judgement, Order or Decree.

15. The submission that an order of reinstatement to employment is self-executory, and therefore beyond the reach of the Court’s stay of execution jurisdiction, is not supported by the E&LRC [Procedure] Rules 2024, or the Constitution of Kenya [Protection of Rights and Fundamental Freedoms] Practice and Procedure Rules, 2013.

16. Rule 72 of the E&LRC [Procedure] Rules requires the Registrar of the Court to draw, seal and issue each order or decree made by the Court. Every decision made by the Court, is followed by further judicial action. Rule 72 mandates the Registrar to issue execution warrants, and stipulates that rules on execution, or stay of execution of an order or decree, shall be in accordance with the Civil Procedure Rules applicable at the High Court.

17. There is no Rule, which makes an exception to orders or decrees issued by the Court, for reinstatement to employment. The order or decree for reinstatement, is like all other orders and decrees, to be extracted, executed or subjected to orders of stay of execution. An Employer cannot know details of the Judgment they are required to implement, without a formal order or decree from the Court, communicating the specific decision and commandment of the Court. This formal order or decree, is a writ of execution, and must be extracted, to be enforceable. The idea that an order or decree made by this Court, can be self-executory, appears to have no legal foundation in our Procedural Rules.

18. Nothing in the Rules governing Constitutional Petitions [paragraph 15 above], provides for self-executory orders or decrees made by the Court. Rule 32 provides for applications for stay of execution of orders and decrees. The Rule stipulates that an application may be made informally, immediately the decision is made, or formally within 14 days, or such other time as the Court may allow. An Appeal or second Appeal, shall not operate as a stay of execution. These Rules do not make provision for self-executory orders and decrees. All orders and decrees must be extracted, and are executable, and there is no decision made by the Courts, under the Rules, which is self–executory.

19. The term self-executory means, taking effect immediately, without need for further judicial action. This is not a description which would fit execution of our orders or decrees, under our procedural regime.

20. The concept of self-executory orders and decrees in Kenya reinstatement law, appears to have found its way, like many other constitutional and labour / employment law concepts, from foreign jurisdictions. It is not founded on our legislation. In Maranaw Hotel Corporation v, NCLR G.R. No. 110027, 16th November 1994, 238 SCRA 806 [Philippines], it was held that reinstatement decrees are self–executory. The concept of self-executory decrees in the Philippines, is founded on their Labour Code. There is no such legislation in Kenya.

21. In another decision from the same foreign jurisdiction, Pioneer Texturizing Corporation v. NLRC. G.R. 118651, 16th October 1997, 280 SCRA, 806, the holding was that even though reinstatement decrees are immediately executory under the Labour Code, they are not self-executory. There must be a writ of execution.

22. Decisions from the E&LRC such as Aggrey Lukorito Wasike v. Kenya Power & Lighting Company Limited [2016] e-KLR, and Matilda Tenge Mwachia v. Kenya Industrial Estate Limited & Another [2020] e-KLR, embrace the view that orders and decrees of reinstatement are immediate and self-executory, and therefore, not amenable to orders of stay of execution pending appeal.

23. These decisions of the E&LRC do not however, point to a specific procedural rule, which sets apart orders or decrees for reinstatement to employment, from other orders and decrees regulated by the Court’s Procedure Rules, so as to make them self-executory, and not amenable to orders of stay of execution. The E&LRC [Procedure] Rules 2024, provide for orders and decrees which require certain steps to be fulfilled, in order to execute them, or to stay their execution. There is no order or decree which is self-executory and all orders and decrees, unless stayed, in any event, take effect immediately. A Judgment of the Court is effective from the date the Judge pronounces it to be, which in most instances, is the date of its delivery. How is a Judgment granting an order of reinstatement different from other Judgments? Do they not all take effect on the date they are made? The writ of execution becomes necessary in formally communicating to the Parties that the Judgment of the Court took effect on a certain date, or its execution was stayed on a certain date, pending further judicial actions. It becomes necessary in execution. Our Rules contemplate further judicial action, after Judgment is delivered, in implementing the Judgment.

24. It is fair to conclude that our legislation does not provide for self-executory decisions of the Court. All orders and decrees must be drawn, sealed and issued by the Registrar of Court, after they are delivered by the Judges. They can be executed or stayed if necessary. They are all capable of being stayed, or frozen, pending appeal. Even declaratory orders are amenable to orders of stay of execution, which in this Petition would mean the declaration of illegality made by the Court, concerning the appointment of the 5th to 8th Interested Parties as ward administrators, is frozen and ineffectual, until the Court of Appeal renders its decision on the illegality of the appointment. In other words, the Parties must revert in full, to where they were, before Judgment was made by this Court, until the Court of Appeal makes its decision.

25. The Applicants have persuaded the Court that the Judgment and Decree of the Court, given on 31st July 2024, is capable of being stayed. There are adequate reasons to stay that decision, pending appeal. There is an arguable Appeal as shown in the Memorandum of Appeal. The Applicants moved the Court without delay in filing of the Notice, and Memorandum, of Appeal. The proceedings of the Court have been typed. The 1st to 4th Respondents are still serving as public servants, on the same terms and conditions of service, save for their job titles and job descriptions. There is no discernible prejudice occasioned to them, by granting the orders of stay of execution. The 5th to 8th Interested Parties cannot continue to serve, with the declaration of illegality hanging over their heads. The Respondents must be allowed to exercise their right of appeal, and the Court of Appeal given the opportunity, to make its own interpretation of the weighty constitutional issues submitted to it, through the Memorandum of Appeal.

It is ordered: -a.The Judgment/Decree of the Court made on 31st July 2024 is stayed pending Appeal.b.No order on the costs.

DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY AT NAKURU, UNDER PRACTICE DIRECTION 6[2] OF THE ELECTRONIC CASE MANAGEMENT PRACTICE DIRECTIONS, 2020, THIS 26TH DAY OF NOVEMBER 2024. JAMES RIKAJUDGE