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ELRCStruck OutJudicial Review (not specified in judgment; leave granted 15 July 2016)· [2016] KEELRC 98 (KLR)

Republic v Egerton University Ex-Parte Peter Wangai [2016] KEELRC 98 (KLR)

Employment and Labour Relations Court
25 November 2016
1,117 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a dismissed lecturer's judicial review case, confirming unfair dismissal claims must go through ordinary employment dispute channels first.

What this practically means

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Executive summary

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Peter Wangai, a medical doctor and advocate employed by Egerton University as a Senior Lecturer, obtained leave on 15 July 2016 to commence judicial review proceedings seeking an order of certiorari to quash a letter dated 6 July 2016 dismissing him from service following a disciplinary process he participated in. He argued, among other grounds, that the Council Staff Disciplinary Committee lacked power to dismiss him and that his right to fair administrative action was violated. The respondent initially misapprehended the procedural posture and filed responses to the leave application; the court varied its directions and permitted proper responses and submissions. The respondent raised the question whether judicial review was the appropriate route for a cause of action grounded on unfair termination or wrongful dismissal. Relying on the Court of Appeal's decision in Gabriel Mutava & 2 Ors v Managing Director Kenya Ports Authority and the Bahadur principle, the court held that where adequate alternative remedies exist, a party should not invoke judicial review; employment disputes belong in the ordinary employment dispute forum. Noting that the applicant's claim was not yet time-barred under section 90 of the Employment Act, 2007, the court struck out the judicial review proceedings with costs to the respondent, leaving him free to pursue the appropriate avenue. Judgment was delivered in Nakuru on 25 November 2016 by Radido Stephen, Judge.

Key legal issues

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01

Appropriateness of the judicial review route for a dismissal dispute

Holding

Judicial review was not the appropriate procedure; the dispute is primarily one of unfair termination/wrongful dismissal for the ordinary employment forum

Reasoning

The Court of Appeal in Gabriel Mutava held that where an adequate alternative avenue exists, parties should not trivialise constitutional litigation. The court endorsed that ratio, substituting 'Constitutional Court' with the Employment and Labour Relations Court and 'constitutional litigation' with 'judicial review litigation'. It further relied on the Bahadur principle that the Constitution is not a general substitute for normal procedures, as endorsed in Mugendi, Munga, Karume and Royal Media Services.

p. 3
02

Appropriate orders where an inappropriate procedure has been adopted

Holding

Striking out rather than dismissal or conversion, with no substantive injustice since limitation had not accrued

Reasoning

The court considered converting the proceedings to a Statement of Claim or striking them out. Since the applicant's cause was not yet barred by the limitation period in section 90 of the Employment Act, 2007, he would suffer no injustice beyond costs; striking out would leave him free to pursue the principal means of resolving an employment dispute.

p. 3

Legal principles established

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  • Where there exists a sufficient and adequate alternative avenue to resolve a dispute, a party should not use judicial review litigation to trivialise the jurisdiction of the Employment and Labour Relations Court
  • The Constitution is not a general substitute for normal procedures for invoking judicial control of administrative action; where infringements can found a claim under substantive law, the claim should be brought under that law

Court orders

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  1. 1.The judicial review proceedings were struck out
  2. 2.Costs to the Respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 23(3)(f)
  • Employment Actsection 90

Cases cited (5)

  • Gabriel Mutava & 2 Ors v Managing Director Kenya Ports Authority & Ar
    (2016) eKLR
  • Daniel N Mugendi v Kenya University & 3 Ors
    (2013) eKLR
  • Alphonce Mwangemi Munga & Ors v African Safari Club Ltd
    (2008) eKLR
  • Speaker of the National Assembly v James Njenga Karume
    (1992) eKLR
  • Communications Commission of Kenya & 5 Ors v Royal Media Services & 5 Ors
    Petition No. 14, 14A, B & C of 2014
Jurisdiction invoked
Judicial review under Article 23(3)(f) of the Constitution (certiorari); matter resolved on procedural appropriateness

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 Egerton University Ex-Parte Peter Wangai [2016] KEELRC 98 (KLR)", Case Analysis (2016). Judicial Review (not specified in judgment; leave granted 15 July 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/98/eng@2016-11-25

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