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ELRCDismissedPetition No. 37 of 2013· [2014] KEELRC 1419 (KLR)

Mwatata Juma Mwangala v Anne Waiguru & 5 others [2014] KEELRC 1419 (KLR)

Industrial Court of Kenya
7 November 2014
MOMaureen Onyango
4,317 words in judgment
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The bottom line

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Kenya's Industrial Court dismissed a CEO's constitutional petition because he failed to name his actual employer and precisely show how his rights were violated.

What this practically means

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Executive summary

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The Petitioner, former CEO of the Youth Enterprise Development Fund, petitioned six respondents - the Cabinet Secretary and Principal Secretary, Ministry of Devolution and Planning, the Fund's Chairman, the Chairperson of the Public Service Commission, the Head of Public Service and the Attorney General - alleging constitutional violations arising from his suspension in March 2013 and the termination of his three-year fixed-term contract in September 2013, after audits implicated him in irregular procurement of a hatcheries project costing over Kshs.208 million. He sought declarations of violation, invalidation of the suspension and termination, stoppage of the CEO recruitment, reinstatement, salary and benefits, and costs. The respondents opposed, arguing non-joinder of the Fund (his actual employer and a body corporate), lack of precision in the constitutional allegations per Anarita Karimi Njeru, and that the 3rd Respondent merely conveyed Board decisions. The court, transferred from the High Court under Article 162(2)(a), framed two issues: whether fundamental rights were violated and whether the reliefs were available. It held the Petitioner failed to specify how or by whom his rights were infringed, that none of the Respondents was his employer, that the Fund - a body corporate - was not joined and its liabilities could not be visited on the Respondents, and that only the 3rd Respondent participated in the disciplinary process. The petition was dismissed with 'Orders accordingly' on 7th November 2014.

Key legal issues

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01

Whether the Petitioner demonstrated violation of his fundamental rights

Holding

No violation established. The Petitioner named Articles but did not state how or by whom rights were infringed; none of the six Respondents was his employer.

Reasoning

The court noted the employer, the Youth Enterprise Development Fund Board, a body corporate, was never joined. Only the 3rd Respondent, as Board Chairman, participated in the disciplinary process and termination. Allegations that other Respondents failed to advise or intervene did not disclose a legal duty capable of founding liability. Following Anarita Karimi Njeru, generalized complaints without focus cannot found a constitutional claim.

p. 8
02

Whether the Petitioner is entitled to the reliefs sought

Holding

Reliefs refused because the terminating entity was not a party and other Respondents did not participate in the termination.

Reasoning

The court held the contract was terminated by the Youth Enterprise Fund Board, which was not joined, and apart from the 3rd Respondent who signed the relevant letters, no other Respondent took part in the disciplinary process or termination. Orders could therefore not issue against the Respondents for the acts of a non-party body corporate.

p. 9

Legal principles established

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  • A petitioner alleging constitutional violations must state with precision the provisions infringed, the manner of infringement, and the infringing party; a body corporate employer not joined as a party cannot have its liabilities visited on other respondents.

Court orders

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  1. 1.The petition was dismissed, the court finding that the Respondents did not breach the Petitioner's constitutional rights
  2. 2.Orders accordingly in line with the court's findings on the two issues for determination

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(1), 2(4), 3(1), 10(1), 10(2), 19, 20, 21(1), 22, 23, 27, 43, 47, 73(1)(a), 129, 131, 134(1)(a), 134(2)(b), 155(1) and (2), 156(1) and (4), 162(2)(a), 232(1)(a)(c)(e), 232(2)(a)(b), 236(a)(b), 259(1), 259(3)(a) and (11)
  • Employment Act2007
  • Youth Enterprise Development Fund OrderSection 5 / Clause 5(1) and 5(3) (L.N. No. 63 of 2007)
  • State Corporations ActSections 3(1), 5(3), 27(1)(c), 7(1) (Cap 446)
  • Interpretation and General Provisions ActSection 69
  • Public Procurement and Disposal Act2005
  • Public Service Commission Act2012
  • Income Tax ActSection 37(2)

Cases cited (8)

  • Anarita Karimi Njeru v. the Republic
    (1976 – 1980) KLR 1272
  • Meme V. Republic & Another
    (2004) eKLR
  • Gladys Boss Shollei v Judicial Service Commission
    (2013) eKLR
  • Dr. Anne Kinyua v Nyayo Tea Zone Development Corporation & 3 Others
    (2012) eKLR
  • Tom Otieno Odongo v Cabinet Secretary Ministry of Labour Social Security Services & Another
    (2013) eKLR
  • Dennis Nyuagaka Ratemo v Kenya Film Commission & Another
    (2014) eKLR
  • Muslims for Human Rights (MUHURI) and 2 Others v Attorney General & 2 Others
    (2011) eKLR
  • Edward Kiragu & Another v SHELL & BP (Malindi) Kenya Ltd
    (2009) eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution (petition transferred from the High Court, Constitutional and Judicial Review Division)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mwatata Juma Mwangala v Anne Waiguru & 5 others [2014] KEELRC 1419 (KLR)", Case Analysis (2014). Petition No. 37 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1419/eng@2014-11-07

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