Once again a court of appeal has sent Eng.Philemon Kandie in the cold after declining to grant him some staying orders.
Kandie had moved to the court of appeal seeking orders that he be reinstated in the office but the court strongly declined his application.
” For the foregoing reasons, we decline to grant an order of stay
as prayed. We hereby dismiss the Notice of Motion dated 5th
June 2023 with each party bearing its own costs. We direct the
intended appeal be listed for hearing on priority basis and the
matter be placed before the President of the Court immediately
for appropriate directions,” the court ruled.
The court of appeal further ruled that Kandie’s stay in office was illegitimate and unconstitutional.
” Further, the contention that the lack of a Director General will
impede the 2nd respondent’s operations falls short of the factual
circumstances. It is a fact that the 2nd respondent for a period
of over one year has operated without having any person
appointed to the position of Director General. If in the
circumstances of this case the 2nd respondent feels that its
operations will be impended due to lack of a holder of the office,
as already stated above, nothing prevents it from starting afresh
the recruitment process. Furthermore, no significant loss,
injury or prejudice is likely to be suffered by any of the parties.
To this extent, the applicant has not satisfied us that the
intended appeal shall be rendered nugatory if stay order is not
granted,” the court directed.
These comes after the Employment and Labour Relations Court overturned a ruling delivered by the Court of the same court in a historic ruling sending Eng. Philemon Kandie to the cold.
In the Judicial Review Application No. E103 of 2023, Judge Justice James Rika in his ruling quashed a Gazette Notice No. 4309 dated 13th April 2022 and thereof nullifying the appointment of Eng Philemon Kandie as the Director General of Kenya Rural Roads Authority.
The case had been filed in court by Samson Nzivo Muthaini, concerned citizen who felt that an illegality had been committed.
The parties being dissatisfied appealed the decision at the Court of Appeal in two different applications, Civil Application No E240 of 2023 and E238 of 2023, filed by different parties but on the same matter. A third appeal was made at the same Employment and Labour Relations Court under Judicial Review Application No. E103 of 2022.
At the Court of Appeal, a bench of three judges delivered their ruling on 12th June 2023, Coram: Omondi, Mativo and Ngenye, JJ.A, under Application No E240 of 2023 did not grant any stay orders and set a ruling on the appeal for 22nd September 2023. The same verdict was upheld by the same bench under Application No E238 of 2023, and delivered on 19th June 2023, who ordered the parties to adhere to the earlier ruling by the court.
However in a land mark ruling by the Employment and Labour Relations, on 14th June 2023, the Judge Justice Nzioka wa Makau overruled the decision of the the Court of Appeal under Judicial Review Application No E103 of 2022 and granted limited remit (Temporary stay orders) and set inter parties hearing for 26th June 2023.
This ruling has send shock waves amongst lawyers and the general public having set a precedent for a High Court to overturn the decision of the Appellate Court. The big question arising from this matter is the interpretation of ruling on the “Stay Orders” granted by the two Courts! Will the litigants abide by the Stay Order granted by the High Court on 14th June 2023 or will they await the decision of the Court of Appeal delivered on 12th June 2023 setting a date of 22nd September 2023 to deliver a ruling after declining to issue any “Stay Orders”. Will the Respondent, Eng Philemon Kandie, continue to discharge his duties as per the High Court ruling or will he be locked out of the office for the duration between 31st May 2023 to 22nd September 2023 awaiting the decision of the Court of Appeal? What is the fate of all decisions, declarations and commitments made by Kandie between 31st May 2023 and 22nd September 2023 if the High Court Judge made a decision to extend the Stay Orders on 26th June 2023! What will be the bearing of this matter incase the Court of Appeal Application No E240 of 2023 upholds the decision of the High Court delivered by Justice James Rika on 31st May 2023 quashing the Gazette Notice No 4309 while the High Court in its Judicial Review No E103 of 2022 makes a Contrary decision upholding the Gazette Notice No 4309 of 13th April 2023?
It will be an interesting piece of literature and history in the making as the law professional and the officers of the court including the general public as they await the ruling of the High Court to be delivered on 26th June 2023 after the expiry of the limited “Stay Orders”.