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ELRCDismissedJR No 2 of 2016· [2016] KEELRC 623 (KLR)

Enock Nyakundi Onchwari v National Authority for the Campaign Against Alcohol and Drug Abuse & 2 others [2016] KEELRC 623 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
7 October 2016
3,837 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed a NACADA employee's challenge to his interdiction, ruling the disciplinary process fairly followed natural justice and internal policy.

What this practically means

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Executive summary

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The ex-parte applicant, formerly acting Chief Executive Officer of NACADA, sought judicial review orders of certiorari, mandamus and prohibition against his interdiction dated 28th October 2015, contending that the disciplinary process breached his right to fair administrative action under Article 47 of the Constitution, natural justice and NACADA's own Human Resource Manual. He argued he was denied adequate preparation, relevant documents and an agreed hearing date, and that the board and the 2nd respondent were biased being judges in their own cause. The respondents, supported by the Attorney General, maintained that the applicant was issued a show cause letter, replied in writing, was given about three months' notice to appear before the staff and welfare board committee, was heard orally, and that the process complied with the Human Resource Policy; they also urged that judicial review does not lie where the dispute requires determination of contested facts. The court, through Mathews N. Nduma, Principal Judge, framed one issue: whether the applicant established grounds for the review remedies on a balance of probabilities. It held he was properly given notice, a hearing before a duly authorised committee, and a reasonable opportunity to present his case; no excesses or procedural derogations were proved. Noting the suit was filed within the six-month interdiction window under clause 9.14.1.5, the court ordered the remaining lawful period to run afresh from judgment, giving the respondents less than 24 days to conclude the disciplinary process. The application was dismissed with costs to follow the outcome.

Key legal issues

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01

Whether the interdiction process breached natural justice and the applicant's right to fair administrative action

Holding

No breach: the applicant received a show cause letter, responded in writing, was given about three months' notice of the hearing and was heard by a duly authorised committee

Reasoning

The court found that the applicant was issued with a notice to show cause under clause 9.10.2 of the NACADA Human Resource Policy and gave a written reply. He was notified to appear before the staff and welfare board committee by a letter dated 27th March 2015 and appeared on 18th June 2015, roughly three months later. He neither requested documents nor sought more time, and did not demonstrate he was unprepared. The court held the respondents did not derogate from the procedure and no excesses were exhibited.

p. 7
02

Whether the interdiction beyond six months without completion of investigations rendered the action unlawful

Holding

The suit was filed before the six-month period expired and the interim orders effectively cushioned the respondents against the six-month rule; the remaining period restarts from judgment

Reasoning

Clause 9.14.1.5 of the NACADA Human Resource Policy requires investigations to be completed within six months of interdiction. The interdiction letter was dated 28th October 2015 and the suit was filed on 4th April 2016, before expiry of six months. The interim orders obtained stayed further action. The court thus ordered the remaining period to run afresh from judgment, giving respondents less than 24 days to conclude the process failing which the applicant would have recourse under clause 9.14.

p. 7

Legal principles established

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  • The requirements of natural justice depend on the circumstances of the case, the nature of the inquiry and the rules under which the tribunal acts, provided the affected person had a reasonable opportunity of presenting his case
  • A court on judicial review is not a court of appeal over the decider and will not go into the merits of the decision
  • An employee on interdiction must be given notice of the charges, an opportunity to respond to a show cause letter and a hearing before a duly authorised body for the process to comply with natural justice

Court orders

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  1. 1.The judicial review application is dismissed
  2. 2.Costs to follow the outcome
  3. 3.The remaining time of the six months interdiction period runs again from the date of the judgment
  4. 4.The respondents have less than 24 days to conclude the pending disciplinary process, failing which the applicant has recourse under clause 9.14 of the NACADA Human Resource Policy

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 50(1)(c)
  • Fair Administrative Action ActSection 4(3)(e)
  • Public Procurement and Asset Disposal Act, 2005
  • Public Procurement and Disposal Regulations of 2006
  • Nacada Act, 2012Section 6
  • NACADA Human Resource Manual/PolicyClauses 9.10.1, 9.10.2, 9.14, 9.14.1.1-9.14.1.5

Cases cited (10)

  • Kanda Vs the Government of Malaya
    (1967) AC 322
  • Republic Vs Inspector General Corporations & Another Ex-parte Titus K. Barmazai
    (2013) eKLR
  • Nyongesa and 4 others –Vs- Egerton University College
    (1990) eKLR
  • Republic –Vs- Kenya Airport Authority Ex-parte Antony Muthumbi Wachira
    (2012) eKLR
  • Council of Civil Servants Union -Vs- Minister of Civil Service
    (1985) AC 2
  • Municipal Council of Mombasa –vs- Republic and Another
    [2000] eKLR
  • Judicial Service Commission –Vs- Gladys Boss Shollei & Another
    [2014] eKLR
  • Republic –Vs- National Transport & Safety Authority & 10 others Exparte James Maina Mugo
    [2015] eKLR
  • Daniel –Vs- Duke of Norfolk
    (1949) 1 All ER 118
  • Peris Wambogo Nyaga –Vs- Kenyatta University
    (2014) eKLR
Jurisdiction invoked
Judicial review jurisdiction under the Constitution and Fair Administrative Action Act, transferred from the High Court to this court

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, "Enock Nyakundi Onchwari v National Authority for the Campaign Against Alcohol and Drug Abuse & 2 others [2016] KEELRC 623 (KLR)", Case Analysis (2016). JR No 2 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/623/eng@2016-10-07

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