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ELRCStruck Out· [2016] KEELRC 1658 (KLR)

Republic v Attorney General & 4 others [2016] KEELRC 1658 (KLR)

High Court of Kenya
5 February 2016
828 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 threw out a civil servant's judicial review bid because employment disputes are contract matters, not public law issues.

What this practically means

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Executive summary

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The ex-parte applicant, a former employee of the Ministry of Interior and Coordination of National Government, sought judicial review orders of certiorari to quash decisions to transfer him to Garissa, stop his promotions, dismiss and terminate his employment (per letters dated 2nd April 2012, 9th May 2012, 4th December 2013, 24th April 2014 and 17th September 2014), mandamus to compel reinstatement, and an order for inspection of his personal file. The respondents, represented by the Attorney General, objected through a replying affidavit stating that the applicant was dismissed for absconding duty and had unsuccessfully appealed. Counsel for the respondents raised a preliminary point that the application was filed more than six months after the decisions sought to be quashed. The court held that the final decision crystallized on 17th September 2014 when the applicant's review was rejected, so filing on 20th January 2015 was within time as regards that decision, but the 2012 decisions on promotion were caught by limitation. The court then raised, on its own motion, the fundamental question of whether the complaints were remediable by judicial review at all. Relying on Visram JA's holding in Staff Disciplinary Committee of Maseno University & 2 Others v. Prof. Ochong' Okello, it held that the applicant's relationship with the 2nd respondent was purely contractual, a private law matter enforceable through ordinary contractual remedies, not judicial review. The application was found incompetent and struck out with costs.

Key legal issues

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01

Limitation period for seeking certiorari

Holding

The final decision on the applicant's fate was the review rejection of 17th September 2014, so filing on 20th January 2015 was within six months; however, the 2012 decisions on promotion were time-barred

Reasoning

The court held that the earlier decisions of 4th December 2013 and 24th April 2014 could only crystalize after the review decision, made when the applicant was informed that no new ground warranted review of his dismissal. The 2012 letters concerning promotion were however caught by the six-month limitation period and could not sustain a judicial review application.

p. 2
02

Whether contractual employment disputes with a public body are remediable by judicial review

Holding

They are not; the dispute was purely a private law contractual matter enforceable through ordinary contractual remedies

Reasoning

The court reasoned that judicial review supervises the decision-making process of public bodies exercising public functions and cannot issue in respect of contractual duties. Although the 2nd respondent is a public body, the applicant's relationship with it was purely a contract of employment. The court associated itself with Visram JA's holding in the Maseno University case to this effect.

p. 2

Legal principles established

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  • Judicial review is a public law remedy that cannot issue to enforce contractual duties, which are enforceable only through ordinary private law remedies
  • An employment dispute between an employee and a public body is a matter of contract of employment and hence a private law matter
  • Judicial review applications must be filed within six months of the decision sought to be quashed

Court orders

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  1. 1.The application as filed is found incompetent and is struck out with costs

Authorities

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Legislation

  • Limitation period for judicial review (six months) - statute not named in the judgmentSix-month limitation for quashing decisions

Cases cited (1)

  • Staff Disciplinary Committee of Maseno University & 2 Others v. Prof. Ochong' Okello
    (2012) eKLR
Jurisdiction invoked
Orders of Certiorari, Mandamus and Injunction under the law of Judicial Review (specific provision not stated in the judgment)

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 Attorney General & 4 others [2016] KEELRC 1658 (KLR)", Case Analysis (2016). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1658/eng@2016-02-05

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