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ELRCDismissedJudicial Review application under Certificate of Urgency filed 3rd September 2015 (number not stated in judgment)· [2015] KEELRC 367 (KLR)

Zachary Onsongo v National Police Service Commission & another [2015] KEELRC 367 (KLR)

Employment and Labour Relations Court
21 September 2015
2,109 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment and Labour Relations Court dismissed a judicial review challenge to a police official's retirement because the applicant had no personal stake and attached no actual decision.

What this practically means

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Executive summary

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The ex parte Applicant, Zachary Onsongo, sought leave on 3rd September 2015 to apply for judicial review orders of certiorari and prohibition against an alleged decision of the President to transfer or retire the Deputy Inspector General of the National Police Service. The 2nd Respondent raised preliminary objections, arguing that the President was not a party, that no decision was attached, that the Applicant lacked privity or standing in an employment dispute, and that he did not represent Ms Grace Kaindi or any union. The 1st Respondent also raised a preliminary objection whose substance is not reproduced. Only the respondents filed submissions; the Applicant did not appear. The Court framed two issues: the Applicant's standing and whether he met the requirements for judicial review. On standing, the Court held that although Article 22 confers access on 'every person', the Applicant did not approach the Court as such and disclosed no interest or nexus to the decision; the underlying dispute was the retirement on age grounds of Ms Grace Kaindi, an employment matter governed by section 22 of the Employment and Labour Relations Court Act, and unsuitable for judicial review which would require viva voce evidence. On the second issue, the Court held that the decision to be quashed must exist and be attached; the Applicant attached only letters from the Inspector General and the NPSC Chairperson, not the alleged presidential decision, a fatal omission. The preliminary objections were upheld and the application held fatally defective. No costs order is recorded.

Key legal issues

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01

Standing of the Applicant in employment and labour relations matters

Holding

The Applicant lacked standing; he did not move the Court as required under section 22 of the Industrial Court Act or Article 22 of the Constitution and showed no nexus to the decision

Reasoning

The dispute underlying the application concerned the retirement on age grounds of Ms Grace Kaindi, an employment matter in which only specified parties under section 22 of the Employment and Labour Relations Court Act may approach the Court. The Applicant described himself merely as the ex parte applicant without disclosing any interest or connection to the decision. Judicial review was also an unsuitable forum since viva voce evidence would be required.

p. 3
02

Requirement to attach the decision sought to be quashed

Holding

The failure to attach the alleged decision of the President was a fatal omission; the letters attached were those of the Inspector General and the NPSC Chairperson, not the President

Reasoning

A party opting for judicial review must attach the decision challenged so the Court can assess it with certainty. Orders cannot issue against a fluid, unspecified decision, which would be unenforceable. The Applicant attached letters signed by Joseph K Boinnet and Johnstone Kavuludi addressed to Grace Kaindi, none of whom were parties, and made no reference to any presidential decision.

p. 3

Legal principles established

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  • A person alleging infringement of rights or fundamental freedoms under the Bill of Rights must nonetheless show their own interest and nexus to the decision challenged; 'every person' standing does not dispense with demonstration of interest
  • A decision sought to be quashed by certiorari must exist and be attached to the judicial review application
  • Judicial review is a discretionary remedy granted only where it serves some useful purpose

Court orders

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  1. 1.The preliminary objections raised by the 2nd Respondent are upheld
  2. 2.The application by the ex parte Applicant is rendered fatally defective and fails

Authorities

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Legislation

  • Law Reform Actsections 8 and 9
  • Civil Procedure RulesOrder 53
  • Employment and Labour Relations Court Act (Industrial Court Act)section 22
  • Constitution of KenyaArticles 22, 245 and 246

Cases cited (12)

  • Transport Workers Union (K) v Ideal Logistics Limited
    [2012] eKLR
  • Amirji Singh v The Board of Post Graduate Studies Kenyatta University
    Civil Appl. No. 1400 of 1995
  • Republic v Registrar of Societies & 2 Others ex parte Samuel Maina & 2 Others
    HCCC JR No. 313 of 2013
  • Koigi Wamwere v The Attorney General
    [2004] 1 KLR
  • Republic v The Commissioner for Cooperative Development ex parte Thika Coffee Mills
  • Commissioner of Lands v Kunste Hotel Limited
    [1997] eKLR
  • Sanghani Investment Limited v Officer in Charge Nairobi Remand & Allocation Prison
    [2007] eKLR
  • Republic v Public Procurement and Administrative Review Board & 2 Others ex-parte Sanitam Services [EA] Limited
    [2015] eKLR
  • Michael Maina Nderitu v Kenya Power and Lighting Co. Ltd & Another
    [2013] eKLR
  • Okiya Omtata Okoiti & Another v KEMRI Board of Management and Others
    Petition No. 33 of 2014
  • Republic v Ex parte Karia
    Misc. Appl. 534 of 2003
  • Republic v Prof. Mwangi Kaimenyi ex-parte KIPPRA
    Civil Appeal No. 160 of 2008
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules; section 22 of the Employment and Labour Relations Court Act (Industrial Court Act); Article 22 of the Constitution

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, "Zachary Onsongo v National Police Service Commission & another [2015] KEELRC 367 (KLR)", Case Analysis (2015). Judicial Review application under Certificate of Urgency filed 3rd September 2015 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/367/eng@2015-09-21

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