[2024] KEELRC 156 (KLR)
The court declined to grant leave for withdrawal of the petition, holding that the issues raised—specifically, compliance with constitutional values and principles in public service recruitment—transcend the interests of the parties and are matters of public interest. The court exercised its discretion under Rule...
Source-derived case information.
- Citation
- [2024] KEELRC 156 (KLR)
- Parties
- Applicant: Michael Sidigu; Respondent: Moses Kiprop Kolum; Respondent: Hon Attorney General; Respondent: Chemelil Sugar Co Ltd; Respondent: Chairman, Board of Directors, Chemelil Sugar Co Ltd; Respondent: Hon Mithika Kinturi, CS Agriculture; Respondent: Public Service Commission
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition E034 of 2023
- Procedural Posture
- Constitutional Petition / Ruling on Withdrawal Application Prior to Judgment
- Outcome
- Leave to withdraw the petition declined; petition to proceed to judgment.
- Judges
- S Radido
- Legal Topics
- Public Service Values, Procedural Fairness, Recruitment Processes, Withdrawal of Petition
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Sidigu
Applicant
Moses Kiprop Kolum
Respondent
Hon Attorney General
Respondent
Chemelil Sugar Co Ltd
Respondent
Chairman, Board of Directors, Chemelil Sugar Co Ltd
Respondent
Hon Mithika Kinturi, CS Agriculture
Respondent
Public Service Commission
Respondent
Procedural Posture
Constitutional Petition / Ruling on Withdrawal Application Prior to Judgment
Legal Issues
- 1 Whether the petitioner should be granted leave to withdraw the petition challenging the appointment of the 1st respondent as CEO/MD of Chemelil Sugar Co Ltd.
- 2 Whether the issues raised in the petition implicate public interest and transcend the interests of the parties.
- 3 Whether the court should exercise its discretion under Rule 27(3) of the Mutunga Rules to proceed with the petition despite the petitioner's wish to withdraw.
Ratio Decidendi
The court declined to grant leave for withdrawal of the petition, holding that the issues raised—specifically, compliance with constitutional values and principles in public service recruitment—transcend the interests of the parties and are matters of public interest. The court exercised its discretion under Rule 27(3) of the Mutunga Rules to proceed with the petition, emphasizing that the juridical effect of the decision impacts the public at large, not just the litigants. The court found that public entities must always uphold constitutional values and principles, and that the withdrawal of the petition would undermine the public interest in ensuring transparent and fair recruitment...
Court Disposition
Leave to withdraw the petition declined; petition to proceed to judgment.
Orders
- The court declines to grant leave for withdrawal of the petition.
- The petition will proceed to judgment as earlier scheduled.
Full Case Text
Judgment text and source record
34 paragraphs
Sidigu v Kolum & 5 others (Petition E034 of 2023) [2024] KEELRC 156 (KLR) (7 February 2024) (Ruling)
Neutral citation: [2024] KEELRC 156 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Kisumu
Petition E034 of 2023
S Radido, J
February 7, 2024
IN THE MATTER OF CONTRAVENTION OF THE CONSTITUTION OF KENYA CONTRARY TO ARTICLES 10, 19, 20, 22, 23, 27, 47, 50, 73 AND 159 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE EMPLOYMENT ACT AND IN THE MATTER OF CHEMELIL SUGAR COMPANY LTD AND IN THE MATTER OF PROCEDURAL RECRUITMENT OF CEO/MD CHEMELIL SUGAR COMPANY LTD AND IN THE MATTER OF ENFORCEMENT OF FUNDAMENTAL RIGHTS AND FREEDOMS, NATURAL JUSTICE, TRANSPARENCY AND FAIR LABOUR PRACTICES IN KENYA AND IN THE MATTER OF QUESTING THE APPLICATION OF CEO, CHEMELIL SUGAR COMPANY LTD BY CHAIRMAN OF THE BOARD ENGINEER JOHN NYAMBOK AND CONCURRENCE LETTER FROM THE CHIEF OF STAFF AND HEAD OF THE PUBLIC SERVICE AND THAT OF CABINET SECRETARY FOR AGRICULTURE, MITHIKA LINTURI RESPECTIVELY FOR CONTRAVENING THE LABOUR LAWS AND CONSTITUTIONAL PROVISION
Between
Michael Sidigu
Petitioner
and
Moses Kiprop Kolum
1st Respondent
Hon Attorney General
2nd Respondent
Chemelil Sugar Co Ltd
3rd Respondent
Chairman, Board of Directors, Chemelil Sugar Co Ltd
4th Respondent
Hon Mithika Kinturi, CS Agriculture
5th Respondent
Public Service Commission
6th Respondent
Ruling
1. The Petitioner moved the Court on 29 December 2023 to challenge the appointment of the 1st Respondent as the Chief Executive Officer/Managing Director of Chemelil Sugar Co Ltd.
2. The Petition went through the legal motions and judgment was scheduled for today.
3. On 5 February 2024, the Petitioner filed a Notice to Withdraw the Petition and he cited Rule 27(1)(a) of the Mutunga Rules. The Respondents have submitted that they do not oppose the withdrawal of the Petition.
4. The Rule cited by the Petitioner contemplates the Court hearing the parties before deciding whether to grant leave before a Petition is marked as withdrawn.
5. Rule 27(3) of the aforesaid Rules gives the Court the discretion to proceed with a Petition notwithstanding the wishes of a Petitioner to withdraw or discontinue the proceedings. The factor the Court should consider is the juridical effect of the decision.
6. In the present Petition, the Petitioner raised questions implicating the Respondents adherence with the values and principles governing the public service and more so the recruitment and process leading to the appointment of the 1st Respondent.
7. The question of compliance with the values and principles of the public service and how it impacts recruitment transcends the interests of the parties herein. It is a matter of public interest since public entities have a duty to respect and uphold the constitutional values and principles at all times.
Orders 8. For these reasons, the Court declines to grant leave for the withdrawal of the Petition and it will proceed to deliver the judgment as earlier scheduled.
DELIVERED VIRTUALLY, DATED AND SIGNED IN KISUMU ON THIS 7TH DAY OF FEBRUARY 2024. RADIDO STEPHEN, MCIARBJUDGEAPPEARANCESPetitioner in personFor 1st Respondent Olel, Onyango, Ingutiah Advocates, LLPFor 3rd and 4th Respondents Otieno, Yogo, Ojuro & Co. AdvocatesFor 2nd and 5th Respondents Mr Felix Kajo, Senior Litigation Counsel, Office of the Hon Attorney GeneralFor 6th Respondent Michael Maurice Ogosso, Principal Legal Counsel, Public Service CommissionCourt Assistant Chemwolo