Republic v Kimenyi; Permanent Secretary, Ministry of Planning (Interested Party); Kenya Institute for Public Policy and Research Analysis (KIPPRA) (Ex parte) (Civil Appeal 160 of 2008) [2013] KECA 373 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that ordinary employment disputes must go through private law channels, not judicial review.
What this practically means
#Executive summary
#Key legal issues
#Availability of judicial review in employment disputes
Judicial review does not lie in ordinary employer-employee relationships; it is confined to public law and ordinarily employment contracts fall outside it.
Judicial review examines the decision-making process, not the merits. Employment contracts are governed by private law unless the contract is statutorily underpinned or fundamental rights are grossly violated. Where termination occurs under a pure contract, the remedy is damages in private law proceedings, not certiorari, mandamus or prohibition.
Statutory underpinning
The respondent's contract with KIPPRA had no statutory underpinning, so public law remedies were unavailable.
Applying the Makokha definition, statutory underpinning means the statute guarantees the employment and forbids removal except per statutory formalities. No statute conferred on the respondent a right to continued employment; termination was to occur under the contract itself, making any grievance a breach-of-contract claim.
Certiorari against non-existent decisions
The trial judge erred in quashing a letter of 24th August 2004 that does not exist and a letter of 16th December 2004 whose underlying decision of 3rd December 2004 was not established.
Certiorari calls into court a decision that has been made. Counsel admitted the 24th August 2004 letter does not exist, and no Board resolution of 3rd December 2004 was produced; without that substratum the letter of 16th December 2004 could not be quashed. A court should not descend into speculation.
Role of the Permanent Secretary
The Permanent Secretary had no role in terminating the respondent's contract, but any unauthorised or unprocedural termination raises only breach-of-contract issues.
The court concurred with the judge that the Permanent Secretary lacked authority to terminate. However, if the terminating person lacked authority or the contractual procedure was not followed, the grievance sounds in private law damages, not judicial review.
Legal principles established
#- Judicial review remedies are not available for ordinary employer-employee contracts; they lie only where the contract has statutory underpinning or there is gross and clear violation of fundamental rights.
- Legality of termination of employment contracts without statutory underpinning is a private law matter with private law remedies.
- A court cannot quash by certiorari a decision whose existence it has not ascertained; the decision to be quashed must first be determined to exist.
Court orders
#- 1.Appeal allowed
- 2.Judgment of the trial judge made on 25th April 2008 granting the orders of certiorari set aside
- 3.Respondent's Notice of Motion dated 13th January 2005 as amended on 9th December 2005 dismissed with costs
- 4.Respondent to bear the costs of the appeal
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- First appellate jurisdiction over the High Court's judicial review decision (no specific provision cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Republic v Kimenyi; Permanent Secretary, Ministry of Planning (Interested Party); Kenya Institute for Public Policy and Research Analysis (KIPPRA) (Ex parte) (Civil Appeal 160 of 2008) [2013] KECA 373 (KLR)", Case Analysis (2013). Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/373/eng@2013-03-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.