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Court of AppealPartially AllowedCivil Appeal No. 102 of 2015· [2017] KECA 461 (KLR)

Benjamin Kipkurui Chepwony & 2 others v Public Service Commission & 3 others [2017] KECA 461 (KLR)

Court of Appeal
30 June 2017
3,605 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal quashed dismissals of public servants because their employer applied different punishments for the same offence without explaining why.

What this practically means

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Executive summary

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This is an appeal from a ruling of Musinga J dismissing a judicial review application by four Chief/Assistant Chiefs in the former Trans Mara District who sought certiorari to quash letters dismissing or retiring them from the public service. The High Court had found the disciplinary process regular. Before the Court of Appeal, the appellants argued they were denied a fair hearing, that the substance of the complaints was never disclosed, that the officer who signed the termination letters lacked authority, and that the old authority of East African Community v Railway African Union, permitting termination without reasons, should yield to the 2010 Constitution. The Court, sitting as Visram, Karanja and Koome JJ.A, restated that judicial review concerns the decision-making process rather than the merits, and applied that framework to the record. It held that the first three appellants received detailed show-cause letters, responded to them, and forfeited their 42-day right of appeal, so their hearing rights were observed; their terminations stood. However, the 4th appellant, never served with a notice to show cause, succeeded. The Court also found that although all four faced the same allegations, two were dismissed for gross misconduct without benefits while two were retired in public interest with benefits; the employer's unexplained differential treatment amounted to abuse or excess of power, vitiating the dismissals of the 2nd and 3rd appellants, who should have been retired in public interest with benefits. The appeal partially succeeded: the relevant dismissal letters were quashed and costs were awarded to the successful parties, with each other side bearing its own costs.

Key legal issues

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01

Whether the right to be heard was violated

Holding

The 1st, 2nd and 3rd appellants received detailed show-cause letters and responded, so their hearing rights were observed; the 4th appellant was not served and succeeds

Reasoning

The letters spelt out the allegations of neglect of duty, notice to show cause was issued, and each of the first three appellants responded denying the allegations. They also had a 42-day right of appeal which they forfeited. The 4th appellant's appeal succeeds because the respondent failed to prove service of the notice to show cause.

p. 6
02

Scope of judicial review jurisdiction

Holding

Judicial review challenges the decision-making process, not the merits

Reasoning

The Court restated the restrictive, sui generis nature of judicial review, drawing on Ransa Company Ltd and Associated Provincial Picture House v Wednesbury Corporation, and on the purpose of certiorari in the Gathenji case: to quash decisions made without jurisdiction, in excess of jurisdiction, or in breach of natural justice.

p. 5
03

Authority of D.O. Ogutu to sign the letters

Holding

He was a duly authorized officer under the Public Service Commission Regulations

Reasoning

The Court adopted the learned Judge's restatement of the definition of an authorized officer and found that D.O. Ogutu, who communicated the Commission's decision, was the duly authorized officer for the Permanent Secretary, and that Regulation 39(1) gave disciplinary authority to authorized officers over Chiefs and Assistant Chiefs.

p. 6
04

Differential treatment in sanctions

Holding

Unexplained differential treatment vitiated the dismissals of the 2nd and 3rd appellants

Reasoning

Though all appellants faced similar allegations, two were dismissed for gross misconduct losing benefits while two were retired in public interest retaining benefits. The employer's discretion over sanction must be exercised fairly; the failure to state reasons for the difference lent credence to the allegation of abuse or excess of power.

p. 6

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision under review
  • An employee facing disciplinary action must be given the substance of the allegations and an opportunity to respond; where a notice to show cause is not served, the termination is quashed
  • An employer's discretion to determine sanctions must be exercised fairly; unexplained differential treatment of employees facing the same allegations amounts to abuse or excess of power
  • A party who fails to exercise a right of appeal provided by the regulations forfeits that right

Court orders

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  1. 1.Quashing the decision of the 1st respondent in respect of the dismissal letters in regard to the 2nd and 3rd appellants dated 2nd July 2007
  2. 2.Quashing the dismissal letter in regard to the 4th appellant, who was not served with notice to show cause
  3. 3.The rest of the prayers in the appeal fail
  4. 4.Costs awarded to the 2nd, 3rd and 4th respondents while the other parties bear their own costs

Authorities

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Legislation

  • Retired Constitution of Kenyasection 106(12)
  • Public Service Regulations 2005regulation 39(1)
  • Public Service Regulations 2005regulation 40
  • Public Service Regulations 2005regulation 92

Cases cited (6)

  • East African Community v. Railway African Union (Kenya & Others)
    1973 E.A 529
  • Selle v Associated Motor Boat Co.
    [1968] EA 123
  • Kiruga v Kiruga & Another
    [1988] KLR 348
  • Ransa Company Ltd vs. Manca Francesco & 2 others
    [2015] eKLR
  • Associated Provincial Picture House vs. Wednesbury Corporation
    [1914] 1 KB 222
  • Republic vs. Kenya National Examinations Council ex parte Gathenji & Others
    Civil Appeal No. 266 of 1996
On appeal from
High Court
Nairobi HCC Misc Application No. 847 of 2007 (JR)
Jurisdiction invoked
First appeal to the Court of Appeal under the Appellate Jurisdiction Act from the High Court's ruling in judicial review proceedings

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Benjamin Kipkurui Chepwony & 2 others v Public Service Commission & 3 others [2017] KECA 461 (KLR)", Case Analysis (2017). Civil Appeal No. 102 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/461/eng@2017-06-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.