Sidigu v Kolum & 5 others [2024] KEELRC 156 (KLR)

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contemplates the Court hearing the parties before deciding whether to grant leave before a Petition is marked as withdrawn.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