Maurice Adongo Anyango v Kenyatta International Convention Centre [2018] KECA 648 (KLR)
The bottom line
#The Court of Appeal confirmed that Kenyan employees of public bodies must sue for unfair dismissal under the Employment Act, not through judicial review.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge erred in refusing to consider the merits or allow the appellant's application for judicial review
- 2.Whether judicial review is an appropriate avenue to challenge the termination of a private contract of employment by a public body employer
- 3.Whether this Court should interfere with the learned Judge's exercise of discretion
Key legal issues
#Amenability of private employment disputes to judicial review
A claim founded purely on a contract of employment between an employee and a public-body employer lacks the public element required for judicial review and belongs to private law under the Employment Act
The Court drew on R v East Berkshire Health Authority, ex p. Walsh, distinguishing public-law rights created where Parliament restricts a public authority's freedom to dismiss from contractual private-law rights. Where the authority grants contractual protection, breach of that contract is not a matter of public law and gives rise to no administrative law remedies. The Employment and Labour Relations Court, a specialised court under Article 162(2), is the proper forum.
Discretionary nature of judicial review remedies
Judicial review reliefs are discretionary and issue only where they are the most efficacious remedy; even a properly brought meritorious application may be refused
Quoting Sanghani Investment Ltd, the Court noted that certiorari is a discretionary remedy a court may refuse even where grounds exist, weighing whether the remedy is the most efficacious. Because determination of salary arrears and reinstatement would require interrogating the reasons and circumstances of termination on viva voce evidence, judicial review was not efficacious.
Interference with discretionary decisions on appeal
An appellate court will not interfere with a trial judge's exercise of discretion absent demonstration that findings were based on no evidence, a misapprehension of it, or wrong principles
The Court noted the appellant had not challenged the learned Judge's exercise of discretion and found no reason to interfere. Citing Mwanasokoni v Kenya Bus Service Ltd, interference is warranted only where findings are based on no evidence at all, on a misapprehension of the evidence, or where the court demonstrably acted on wrong principles.
Legal principles established
#- An employer's action within a contract of employment, even by a public body, is ordinarily governed by private law and should be pursued under the Employment Act before the Employment and Labour Relations Court, not by judicial review
- Where there is a clear procedure for redress of a particular grievance prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed
- Allowing litigants to shuffle between courts of equal status to pursue employment disputes would cause jurisdictional rivalry and confusion
Court orders
#- 1.Appeal dismissed
- 2.Costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Nairobi
- Judicial Review Application No. 126 of 2016
- Jurisdiction invoked
- First appeal under rule 29(1) of the Court of Appeal Rules
Relief refused
#Judicial review orders of certiorari, mandamus and prohibition quashing the interdiction, termination and compelling reinstatement
Judicial review is confined to the decision-making process; a pure employment contract dispute lies in private law before the specialised ELRC, and judicial review remedies are discretionary and were not the most efficacious remedy
Salary arrears claimed by the appellant
Salary arrears are in the nature of special damages requiring specific proof and cannot be determined in judicial review proceedings on affidavit evidence
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.
In conclusion, we reiterate that an employer’s action within a contract of employment should ordinarily be governed by private law.
The upshot is that the appeal fails and is dismissed with costs to the respondent.
A specialized court exists to deal with employment matters and it would cause jurisdictional rivalry and/or confusion if courts would allow litigants to shuffle between any courts, even if they are of equal status.
Furthermore, this Court has in several decisions held that where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.
It also ought to be borne in mind that judicial review reliefs are discretionary and will only issue in the most deserving of cases.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maurice Adongo Anyango v Kenyatta International Convention Centre [2018] KECA 648 (KLR)", Case Analysis (2018). Civil Appeal No. 324 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/648/eng@2018-05-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.