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ELRCAllowedJudicial Review Notice of Motion dated 6th November 2012 (filed 7th November 2012)· [2014] KEELRC 1044 (KLR)

John Ogendo Anyona v Chief of Kenya Defence Forces & 2 others [2014] KEELRC 1044 (KLR)

Industrial Court of Kenya
30 May 2014
2,325 words in judgment
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The bottom line

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Kenya's Industrial Court quashed a soldier's dismissal, ruling military authorities acted unreasonably by firing a 26-year officer over a sanctioned salary balance.

What this practically means

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Executive summary

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The ex parte Applicant, a former sergeant who served in the Armed Forces for 26 years, sought leave and thereafter filed a substantive notice of motion for judicial review seeking certiorari to quash the decision of 25th March 2009 dismissing him from service (after demotion and a fine of 15 days' pay) following a summary trial on charges of forging a payslip, a signature and a service rubber stamp, and receiving a low net salary of Kshs.770/= after obtaining a top-up loan from Harambee Co-operative Society; and mandamus to compel the issuance of a certificate of discharge with correct particulars. The Respondents filed no response and adduced no evidence, and the Applicant's averments stood uncontroverted. The Court, applying the standard that judicial review intervenes where a decision is unreasonable, an abuse of discretion or ultra vires the statute, found that the 1st and 2nd Respondents exercised their statutory jurisdiction unreasonably to the point of abuse of lawful authority: the dismissal of an officer of good standing for a salary balance that was sanctioned at the time was unjustified, and the demotion and fine followed an unprocedural exercise of authority. The Court allowed the application, issued certiorari quashing the reduction in rank, forfeiture of 15 days' pay and dismissal, and issued mandamus compelling the Respondents to reinstate the Applicant and retire him without loss of rank or benefits, with costs to the Applicant.

Key legal issues

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01

Whether the Respondents acted unreasonably and ultra vires the Armed Forces Act in dismissing and demoting the Applicant

Holding

The Respondents exercised their statutory jurisdiction unreasonably, amounting to abuse of lawful authority; the dismissal, demotion and fine were unjustified and unfair.

Reasoning

The Respondents filed no response and adduced no evidence to justify the summary trial, the demotion or the dismissal. The Applicant's uncontroverted explanation accounted for the low payslip balance of Kshs.770/=. Against the judicial review standard permitting intervention where a decision is irrational, unreasonable or an abuse of discretion, the punishment of a 26-year officer of good standing for a sanctioned salary balance was an unreasonable and ultra vires exercise of authority.

p. 5
02

Whether the Industrial Court had jurisdiction over the transferred judicial review matter

Holding

The suo motu transfer to the Industrial Court was proper, the Court having jurisdiction over employment matters per Mugendi v Kenyatta University.

Reasoning

Following the Court of Appeal decision in Professor Daniel Mugendi v Kenyatta University, Civil Appeal No. 6 of 2012, the transfer by Majanja J. of a matter concerning terms of employment to the Industrial Court was upheld as properly made.

p. 2

Legal principles established

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  • Averments in a supporting affidavit that remain unchallenged stand proven on a balance of probability.
  • Judicial review is concerned with the decision-making process, not the merits of the decision.

Court orders

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  1. 1.An order of CERTIORARI issued to quash the decision by the 1st and 2nd Respondent and conveyed by the 3rd Respondent to reduce the Applicant in rank, forfeiture of 15 days pay and dismissal from service
  2. 2.An order of Mandamus compelling the Respondents to reinstate the Applicant to the position previously held by him with full pay and retire him without loss of rank and benefits from the date of the judgment
  3. 3.The Respondent to pay the costs of the Application

Authorities

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Legislation

  • Armed Forces ActCap 199 of the Laws of Kenya (repealed) and the Rules/Regulations thereunder

Cases cited (3)

  • Professor Daniel Mugendi v Kenyatta University
    Civil Appeal No. 6 of 2012
  • Republic v The Vice Chancellor Jomo Kenyatta University of Agriculture and Technology, Ex parte Dr. Cecilia Mwathi and Mr. Moses Muchina
    Misc. Civil Application No. 30 of 2007
  • Chief Constable of North Wales Police v Evans
    [1982] WLR 1155
Jurisdiction invoked
Judicial review jurisdiction over employment matters transferred to the Industrial Court suo motu on the authority of Professor Daniel Mugendi v Kenyatta University, Civil Appeal No. 6 of 2012

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, "John Ogendo Anyona v Chief of Kenya Defence Forces & 2 others [2014] KEELRC 1044 (KLR)", Case Analysis (2014). Judicial Review Notice of Motion dated 6th November 2012 (filed 7th November 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1044/eng@2014-05-30

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