[2011] KEHC 4235 (KLR)
The court found that since the Minister's decision to revoke the applicant's appointment had already been implemented by the appointment of another officer and the applicant's removal from the payroll, there was nothing left to stay. Granting a stay would result in the applicant being paid for a position he no...
Source-derived case information.
- Citation
- [2011] KEHC 4235 (KLR)
- Parties
- Applicant: Wilson Njau Huruko; Respondent: The Minister for Local Government; Respondent: The Hon. The Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 1 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay Pending Judicial Review
- Outcome
- application for stay dismissed with costs to the respondents
- Judges
- DK Musinga
- Legal Topics
- Judicial Review, Natural Justice, Stay of Execution, Public Officer Appointments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilson Njau Huruko
Applicant
The Minister for Local Government
Respondent
The Hon. The Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay Pending Judicial Review
Legal Issues
- 1 Whether leave granted to apply for judicial review should operate as a stay of the Minister's decision revoking the applicant's appointment.
- 2 Whether the court can stay a decision that has already been implemented by the appointment of another officer.
- 3 Whether the applicant's remedy lies in damages or judicial review.
Ratio Decidendi
The court found that since the Minister's decision to revoke the applicant's appointment had already been implemented by the appointment of another officer and the applicant's removal from the payroll, there was nothing left to stay. Granting a stay would result in the applicant being paid for a position he no longer held, which would be contrary to law. The court also noted that the applicant's remedy, if any, lay in damages for breach of contract rather than judicial review. Consequently, the application for stay was dismissed.
Court Disposition
application for stay dismissed with costs to the respondents
Orders
- The ex parte applicant's application for stay is dismissed.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MISCELLANEOUS APPLICATION NO. 1 OF 2011
IN THE MATTER OF AN APPLICATION BY WILSON NJAU HURUKO FOR LEAVE TO APPLY FOR JUDICIAL REVIEW BY WAY OF ORDERS OF CERTIORARI AND PROHIBITION TO THE MINISTER FOR LOCAL GOVERNMENT
AND
IN THE MATTER OF THE LOCAL GOVERNMENT ACT CAP 265 OF THE LAWS OF KENYA, THE LAW REFORM ACT CAP 26 OF THE LAWS OF KENYA AND THE CIVIL PROCEDURE RULES
BETWEEN
WILSON NJAU HURUKO................................................................................................APPLICANT
AND
THE MINISTER FOR LOCAL GOVERNMENT....................................................1ST RESPONDENT
THE HON. THE ATTORNEY GENERAL.............................................................2ND RESPONDENT
RULING
On 21st January, 2011 this court granted leave to the ex parte applicant to apply for an order of certiorari to remove into this court and quash the decision of the 1st respondent revoking the appointment of the ex parte applicant as the Government Representative to the Municipal Council of Thika. The court also granted leave to the ex parte applicant to apply for an order of certiorari to remove into this court and quash the decision of the 1st respondent of appointing another Public Officer as the Government Representative to the said Local Authority.
The court directed that the issue as to whether the leave so granted was to operate as a stay of the 1st respondent’s decision be argued inter partes on 28th January, 2011.
Mr. Macharia for the ex parte applicant agued that the Minister’s decision was made in contravention of the rules of natural justice because the ex parte applicant had not been given any notice of the impending termination of his services and neither was he called upon to show cause why his services could not be terminated before the axe fell. His appointment was for a period of five years and thus the revocation was premature, he added.
Counsel further submitted that another officer had already been appointed to replace the ex parte applicant. He pleaded with the court to stay the Minister’s decision so that the name of the ex parte applicant is not removed from the payroll of the Local Authority, saying that his client’s legitimate expectations were going to be dashed by the Minister’s decision unless the same is stayed.
Mr. Onyiso for the respondents opposed the application for stay. He submitted that the ex parte applicant had not made out a prima facie case with a likelihood of success. He pointed out that the subject matter of the dispute was a contract of employment between the ex parte applicant and the appointing authority. That being the case, his remedy lay in a claim for damages and not judicial review proceedings. He cited the case of REPUBLIC vs. JUDICIAL SERVICE COMMISSION EX PARTE PARENO, [2004] KLR 203.
The ex parte applicant conceded that following the revocation of his appointment in December, 2010, the 2nd respondent had already appointed another Public Officer as the Government Representative in his place. That being the case, I believe the name of the ex parte applicant has already been removed from the payroll of Municipal Council of Thika and replaced with that of the other appointee. Can the court stay that which has already taken place? I do not think so. If the court were to order stay of the Minister’s decision as prayed that would be tantamount to ordering that the ex parte applicant continues to be paid his salaries and allowances even when he is not working as the Government Representative until these proceedings are heard and determined. That would be contrary to the law.
I do not wish to say much regarding the merits or otherwise of the judicial review proceedings since at this stage I am only dealing with the issue of stay.
I am not persuaded that there are sufficient grounds upon which this court can order that the leave that was granted on 21st January, 2011 do operate as a stay of the Minister’s decision as aforesaid. The ex parte applicant’s application for stay is dismissed with costs to the respondents.
DATED, SIGNED and DELIVERED at NAIROBI 1ST DAY OF FEBRUARY, 2011.
D. MUSINGA
JUDGE
In the presence of:
Nazi – court clerk
Mr. Macharia for the applicant
No appearance for the respondents