Simon M. Nyakundi v Attorney General on behalf of Permanent Secretary Ministry of Foreign Affairs [2016] KECA 640 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed a public servant's dismissal stands because he sued the wrong government body and never joined the Public Service Commission.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was a decision of the Permanent Secretary capable of being quashed by an order of certiorari
- 2.Whether mandamus could issue to compel reinstatement given the appellant was not the Permanent Secretary's employee
- 3.Whether the Permanent Secretary Ministry of Foreign Affairs and the Attorney General were the correct parties to be sued, in the absence of the Public Service Commission
- 4.Whether disciplinary proceedings are tied to criminal process where the alleged misconduct was criminal in nature but no charges were preferred
- 5.Whether the appellant's arrest and confinement in Iran violated the Vienna Convention on Diplomatic Immunity
- 6.Whether the appellant was denied the right to be heard in breach of the rules of natural justice
Key legal issues
#Availability of certiorari against the letter of 16th May 2007
Certiorari could not issue because the letter contained no decision of the Permanent Secretary; it merely conveyed the Public Service Commission's rejection of the appellant's review
The court re-evaluated the correspondence and found the decision to dismiss had been made by the Public Service Commission and communicated earlier in letters of 18th October 2006 and 14th November 2006. The 16th May 2007 letter was informational only. Judicial review remedies are discretionary and directed at decision-makers, so there was no decision of the respondents capable of being quashed.
Proper party to be sued
The appellant sued the wrong party: the employer and decision-maker was the Public Service Commission, a body corporate, which was never joined; the Permanent Secretary is not a body corporate
The appellant was employed and dismissed by the Public Service Commission, which under the Public Service Commission Act read with Articles 233 and 253 of the Constitution is a body corporate. The Permanent Secretary, Ministry of Foreign Affairs is not a body corporate and the Attorney General suing on its behalf had no juridical basis, as in the National Irrigation Board analogy. Failure to join the Commission meant it could not defend the application.
Relationship between disciplinary and criminal processes
Disciplinary proceedings under the Public Service Commission Regulations are independent of criminal proceedings arising from the same facts
Adopting the High Court's reasoning in James Mugera Igati, the court held that nothing in the Public Service Commission Regulations requires an employer to await police investigations or criminal court decisions before resolving employment disputes; disciplinary processes and criminal trials are not merged. That the appellant was never charged did not render the dismissal grounds unproven for disciplinary purposes.
Diplomatic immunity under the Vienna Convention
The appellant could not invoke diplomatic immunity against Kenya as the sending state; only the receiving state's violations could be complained of, and locus to complain about the violated Chancery rests with Kenya as sovereign
The appellant was a Kenyan citizen posted to Tehran; subject to limited exceptions a citizen cannot have diplomatic immunity in his own home state, and immunity in a foreign country can be lifted by the sending state. No evidence showed Kenya complained of the arrest within its own Chancery, so the appellant had no locus to complain of a violation of the Vienna Convention.
Natural justice and the right to be heard
The appellant was given an opportunity to respond to the allegations and exercised it, so natural justice was not breached
On re-examination of the record, the court was satisfied the appellant responded to all allegations of misconduct through numerous letters and memos filed on record. The claim that documents relied upon were not availed to him did not displace the finding that he was heard. This finding, together with the misjoinder findings, supported affirmance of the dismissal of the judicial review application.
Legal principles established
#- An order of certiorari can only quash a decision actually made by the party against whom it is sought; a letter merely conveying a third party's decision is not quashable
- Mandamus lies only against a public or statutory body with a legal duty to perform the act sought, and cannot compel reinstatement by a party that is not the employer
- The Public Service Commission is a body corporate capable of suing and being sued in its own name, and failure to sue it where it made the impugned decision is fatal
- A disciplinary process in the public service is not tied to criminal process arising from the same facts; an employer need not await police investigations or criminal court decisions
- A Kenyan citizen posted abroad cannot invoke diplomatic immunity against Kenya, the sending state; diplomatic immunity can only be invoked against the receiving state
- The Permanent Secretary, Ministry of Foreign Affairs is not a body corporate capable of suing and being sued in its own name
Court orders
#- 1.Appeal dismissed
- 2.Appellant to pay costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- HC Misc. App. No. 802 of 2007
- Jurisdiction invoked
- First appellate jurisdiction over the High Court (judicial review matter); appeal against dismissal of judicial review application
Relief refused
#Order of certiorari to quash the decision in the letter dated 16th May 2007
The letter did not contain a decision by the Permanent Secretary; it merely conveyed the Public Service Commission's decision, so there was nothing capable of being quashed
Order of mandamus to compel reinstatement into public service
The respondents had no statutory duty to employ or dismiss the appellant; mandamus can only issue against a public officer with a statutory obligation
Costs
Appeal dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
An order of certiorari quashes a decision already made and will issue if the decision is made without or in excess of jurisdiction, or where the rules of natural justice are not complied with.
Judicial review remedies are discretionary and the Court has to consider whether they are the most efficacious in the circumstances of the case. Judicial review is in the purview of public law, not private law.
In our view, subject to Article 47 of the Constitution and the provisions of Fair Administrative Action Act of 2015 the remedy of judicial review is concerned with reviewing not the merits of the decision in respect of which the application for judicial review is made, but the decision making process itself.
A citizen of the sending state cannot invoke diplomatic immunity against his country; diplomatic immunity can only be invoked against the host/ receiving state.
The upshot is that this appeal has no merit and is hereby dismissed with costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simon M. Nyakundi v Attorney General on behalf of Permanent Secretary Ministry of Foreign Affairs [2016] KECA 640 (KLR)", Case Analysis (2016). Civil Appeal No. 305 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/640/eng@2016-04-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.