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ELRCDismissedJudicial Review Application (transferred from Mombasa High Court; date of filing 4th December 2014; case number not stated)· [2015] KEELRC 946 (KLR)

Republic v Kenya Airports Authority & another Exparte Moses Echwa [2015] KEELRC 946 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
16 June 2015
5,024 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan employees dismissed by public bodies must sue under the Employment Act, not judicial review, when the dispute is purely contractual.

What this practically means

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Executive summary

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Moses Echwa, a Supervisor in the Ground Flight Safety Department of the Kenya Airports Authority, was summarily dismissed on 9th July 2014 for alleged gross misconduct relating to missing official documents and unremitted revenue. He filed a judicial review application seeking certiorari to quash the dismissal and mandamus to compel reinstatement, alleging he was denied a fair hearing - no service of a charge sheet, no opportunity to call or cross-examine witnesses, and non-compliance with the Human Resources Manual. The Respondents argued the dispute was private law, fair procedure under Section 41 of the Employment Act was followed, and alternative remedies existed under the Employment Act. The Court framed three issues: whether the relationship was governed by public or private law; whether procedural justice was denied; and whether judicial review was appropriate. Holding that the Human Resources Manual is a quotidian contractual instrument rather than subsidiary legislation or a bye-law, and applying the source and nature tests, the Court found the Respondents acted under a contract of employment rather than a statutory power, so the dispute is private law. The Court could not determine the procedural fairness question on affidavits, holding a full trial necessary. It declined to convert the proceedings since only prerogative orders were sought. The application was rejected with costs to the Respondents, and the Applicant was granted liberty to bring a claim under the Employment Act 2007 and the Industrial Court [Procedure] Rules 2010.

Key legal issues

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01

Whether the dismissal decision was taken in exercise of public or private law powers

Holding

The decision was taken pursuant to a private law contract of employment; the Human Resources Manual is not subsidiary legislation or a bye-law and confers no public law element

Reasoning

The Manual was created by the Human Resources Department with only Board approval, can be varied without public consequences, and is expressly incorporated into the contract under clause [f]. Chitty characterises employment contracts as expressions of private autonomy. Applying the source test, the Applicant failed to show statutory underpinning; the Respondents acted on contract, and the Manual itself requires application of the Employment Act in summary dismissal.

p. 6
02

Whether the Applicant was denied natural/procedural justice

Holding

The Court could not definitively determine whether procedural justice was granted or denied without additional evidence at a full trial

Reasoning

Disputed issues - service of the charge sheet, opportunity to call and cross-examine witnesses, and the evidential burden under the cited authorities - would best be resolved where parties can call evidence in full. Judicial review on affidavits would not allow the Respondent a fair opportunity to justify its decision; specific issues needed ventilation through a full trial.

p. 9
03

Whether judicial review is the appropriate procedure and remedy

Holding

Judicial review is not appropriate; the Applicant should pursue remedies under the Employment Act, including Section 49 remedies, through a full trial

Reasoning

Judicial review restricts the Court to process, not substantive justification, risking reinstatement of an employee probably guilty of gross misconduct merely on procedural flaws. Public interest is not safeguarded that way. The Employment Act 2007 binds public bodies, injects natural justice standards into every contract, and the Industrial Court can resolve disputes expeditiously; special procedures for public body employees no longer have justification.

p. 9
04

Whether the Applicant could proceed with the claim as if initiated by a Statement of Claim

Holding

The Court declined to convert the proceedings because only prerogative orders were sought; the Applicant needed to reformulate his reliefs

Reasoning

Using anti-technicality principles, the Court considered preserving the Applicant's position, noting his 17½ years of service without terminal benefits. However, since the Applicant sought prerogative orders only, proceedings could not continue as an employment claim, and he would need to consider what reliefs suit him, weighing the costs burden of fresh proceedings.

p. 9

Legal principles established

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  • A Human Resources Manual becomes an enforceable contract only if expressly incorporated into the individual employment contract, and does not, by itself, inject a public law element into employment disputes
  • Termination of employment of public body employees is governed by private law unless there is statutory underpinning directly restricting the freedom to dismiss; the source and nature tests determine amenability to judicial review
  • After the 2007 labour reforms, employees of public bodies must pursue employment claims through full trials under the Industrial Court Procedure Rules rather than judicial review

Court orders

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  1. 1.The Application for Judicial Review is rejected
  2. 2.The Applicant shall meet the Respondents' costs of the Review
  3. 3.The Applicant is at liberty to bring a Claim against the 1st Respondent under the Employment Act 2007 and the Industrial Court [Procedure] Rules 2010

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 41[1], 47, 50, 159
  • Employment Act 2007Sections 26, 41, 43, 45, 45[4], 49; Part 3
  • Evidence Act Cap 80 (referred to as Cap 108 in the judgment)Sections 107, 108; Section 117 (as cited in Munyu Maina v. Hiram Gathiha Maina)
  • Kenya Airports Authority Act Cap 395Powers conferred on the Board of Directors
  • Industrial Court [Procedure] Rules 2010
  • Industrial Court Act

Cases cited (12)

  • Zaccheus Kyai Munyao v. Kenya Airports Authority
    Mombasa High Court Misc. Civil Application Number 569 of 2006
  • William Cheruyiot Kandie v. the Republic
    C.A. Criminal Appeal Number 21 of 1996 at Kisumu
  • Munyu Maina v. Hiram Gathiha Maina
    C.A. Civil Appeal Number 239 of 2009 at Nyeri
  • Nyongesa & 4 Others v. Egerton University College
    [1990] KLR; C.A. Civil Appeal Number 90 of 1989
  • Kadamas v. the Municipality of Kisumu
    [1985] KLR; C.A. Civil Appeal Number 109 of 1984
  • Republic v. the Judicial Service Commission ex parte Pareno
    [2004] 1 KLR 203
  • Joccinta Wanjiru Raphael v. William Nangulu- Divisional Criminal Investigation Officer Makadara & 2 Others
    [2014] e-KLR
  • Samuel Kenga v. Lavington Company
    Cause Number 168 of 2012
  • National Union of Water & Sewerage Employees v. Mathira Water & Sanitation Company Limited
    [2013] e-KLR; Cause Number 1664 of 2012
  • Malloch v. Aberdeen Corpn
    [1971] 2 All E.R. 1278
  • R v. East Berkshire Health Authority Ex. P Walsh
    [1985] Q.B. 152
  • R v. the Secretary of State for the Home Department Ex. P Benwell
    [1984] All E.R. 854
Jurisdiction invoked
Judicial review jurisdiction of the Industrial Court under the Constitution and the Industrial Court Act; matter transferred from the High Court at Mombasa on 5th November 2014

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, "Republic v Kenya Airports Authority & another Exparte Moses Echwa [2015] KEELRC 946 (KLR)", Case Analysis (2015). Judicial Review Application (transferred from Mombasa High Court; date of filing 4th December 2014; case number not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/946/eng@2015-06-16

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