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ELRCPartially AllowedJudicial Review No. 2 of 2014 (notice of motion dated 18.12.2014)· [2015] KEELRC 1163 (KLR)

Republic v Arnord Karani Njiru - Fund Account Manager, Laikipia East Constituency Fund & 10 others Ex Parte Amin Mohammed Ali [2015] KEELRC 1163 (KLR)

Industrial Court (Employment and Labour Relations Court)
30 April 2015
5,326 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court quashed a CDF committee chairman's removal because the committee acted as accuser, investigator and judge, denying him a fair hearing.

What this practically means

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Executive summary

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Amin Mohammed Ali, the ex parte applicant and chairman of the Laikipia East Constituencies Development Fund Committee (11th respondent), challenged by notice of motion dated 18.12.2014 the committee's resolution of 30.06.2014 removing and expelling him from office. The removal followed earlier litigation in which the court had declared his purported replacement invalidly in office and directed that any fresh removal comply with the CDF Act and natural justice. The committee thereafter preferred allegations against him, invited him to a hearing on 30.06.2014, and resolved to remove him by letter of 4.07.2014. He complained that he was denied a fair hearing: his advocate was admitted to the hearing but prevented from effectively participating, he was put to his defence without his accusers' case being established, and the committee members who accused him also sat in judgment. The respondents raised preliminary objections on jurisdiction, contending there was no employer-employee relationship and that section 49(1) of the CDF Act required disputes to go to the board first. The court found jurisdiction under the servants-of-the-people doctrine, held that section 49 did not oust judicial review over procedural impropriety, and found the removal process breached natural justice and the legitimate expectation of legal representation. Judgment was entered for the applicant: certiorari quashing the removal resolution and the appointment of Newton Kabuthia, prohibition against interference with his duties, declarations that he remains lawful chairman and that the removal violated the law, mandamus being refused as superfluous, and costs awarded to the applicant.

Key legal issues

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01

Jurisdiction over public officers' removal disputes

Holding

The applicant, as chairman of a public body drawing allowances, was a public officer and employee; employer-employee relationship existed and the court had jurisdiction

Reasoning

The court applied its earlier decisions holding all public and state officers are servants of the people. The applicant drew wages in the form of allowances, his service was regulated by statute and public service policies, and no constitutional provision ousted the court's jurisdiction. Accordingly an employer-employee relationship was found and jurisdiction upheld.

p. 5
02

Effect of section 49(1) CDF Act on judicial review

Holding

Section 49 does not oust the court's jurisdiction over procedural impropriety; the board dispute-resolution mechanism covers substantive complaints, not judicial review matters

Reasoning

The court distinguished substantive complaints and disputes arising from administration of the Act, which go to the board/arbitration, from procedural improprieties which are properly the province of judicial review. Judicial review orders such as certiorari, prohibition and mandamus can only issue from the court, and the board was not vested with dispute-resolution powers.

p. 6
03

Fair hearing and natural justice in removal proceedings

Holding

The removal resolution was made in breach of natural justice: the applicant's advocate was prevented from participating, the respondents were accusers and judges, and the applicant was put to his defence without a case being established

Reasoning

The respondents admitted they were the accusers yet sat in judgment, creating bias. The letter of allegations did not establish the allegations; evidence and witnesses were required first. The applicant had a legitimate expectation of legal representation since the advocate was admitted to the hearing, and resisting his participation defeated that expectation. The respondents acted as investigators, accusers and judge.

p. 8
04

Timeliness of the certiorari application

Holding

The application filed 18.12.2014 was within the 6-month period prescribed for certiorari

Reasoning

The respondents argued delay from the 30.06.2014 resolution to filing. The court found the filing was within the prescribed six months for certiorari and that the applicant was therefore not guilty of unreasonable delay.

p. 9

Legal principles established

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  • Persons holding public or state office are servants of the people of Kenya and matters related to their employment fall within the court's jurisdiction unless a clear constitutional provision ousts it
  • Section 49 of the CDF Act does not oust the court's jurisdiction over judicial review applications arising from procedural impropriety in decisions made under the Act
  • The right to legal representation during administrative decision making is a crucial component of fair hearing which cannot be defeated in absence of clear statutory qualification
  • A decision maker must be independent of the investigative and prosecutorial functions; being accuser and judge defeats fair hearing

Court orders

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  1. 1.Judicial review order of certiorari quashing the 11th respondent's resolution made on 30.06.2014 to remove and expel the applicant as chairman and member of the 11th respondent
  2. 2.Judicial review order of certiorari quashing the appointment of Newton Kabuthia to the office of chairman of the 11th respondent
  3. 3.Judicial review order of prohibition against the respondents prohibiting them from interfering with the applicant's exercise of the statutory duties as chairman of the 11th respondent
  4. 4.Declaration that the applicant remains the lawful holder of the position of chairman for the 11th respondent
  5. 5.Finding that the resolution and decision of the respondents in respect of the removal and expulsion of the applicant from the committee constituted a conduct that was in full violation of the law
  6. 6.Respondents to pay the applicant's costs of the application

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27, 28, 35, 41, 50; Article 165(3)(c)
  • Law Reform ActSection 9
  • Civil Procedure RulesOrder 53
  • Constituencies Development Fund Act, 2013Sections 9, 12, 24, 24(15), 25(15), 49(1)-(5)
  • Employment and Labour Relations Act, 2011Section 12
  • Employment Act, 2007definition of employee

Cases cited (6)

  • Richard Bwogo Birir –Versus- Narok County Government and 2 Others
    [2014] eKLR
  • Geoffrey Makana Asanyo –Versus- Nakuru Water and Sanitation Company and 6 Others
    [2014] eKLR
  • Peter Ochara Anam and 3 Others – Versus- Constituencies Development Fund Board and 4 Others
    [2011] eKLR
  • Geoffrey Kirimi Imathiu and 2 Others – Versus- Constituency Development Fund Board and 8 Others
    [2013] eKLR
  • George Morara Manyara – Versus- Hon. Maina Kamanda and 3 Others
    [2014] eKLR
  • Institute of Social Accountability & Another –Versus- National Assembly & 4 Others
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Act, section 12; Articles 27, 28, 35, 41 and 50 of the Constitution; Section 9 of the Law Reform Act; Order 53 of the Civil Procedure Rules

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, "Republic v Arnord Karani Njiru - Fund Account Manager, Laikipia East Constituency Fund & 10 others Ex Parte Amin Mohammed Ali [2015] KEELRC 1163 (KLR)", Case Analysis (2015). Judicial Review No. 2 of 2014 (notice of motion dated 18.12.2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1163/eng@2015-04-30

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