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ELRCAllowedJudicial Review No. 205 of 2013· [2016] KEELRC 1841 (KLR)
Republic v Department of Labour & 3 others Exparte Philip Omondi [2016] KEELRC 1841 (KLR)
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#What this practically means
#Executive summary
#The exparte applicant, former Chief Executive Officer of Akamba Public Road Services Limited, sought judicial review orders of certiorari and prohibition against criminal charges of wilful failure to pay wages contrary to sections 17(1) and (10) of the Employment Act, brought by the labour officer in Milimani Criminal Case No. 517 of 2012, following the company's insolvency, receivership and the termination of his employment on 28th May 2012. He contended the decision to prosecute was malicious, ill informed, unfair and unreasonable since the company, not he, was unable to pay wages of Kshs.17,868,046, and he was himself owed Kshs.16,506,800. All respondents opposed, relying on section 23 of the Penal Code and sections 35 and 39 of the Labour Institutions Act, and asserting that investigations established a case. The court, citing Githunguri v Republic, Thuita Mwangi v EACC, Vincent Kibiego Saina and Beatrice Ngonyo Kamau, held that the DPP and its agents must exercise prosecutorial discretion reasonably and on reasonable grounds, showing a prima facie case. It found the applicant was not a director, not a signatory to company accounts, and that payment of wages was beyond him given insolvency and receivership; the statutory remedy for employees of insolvent employers lies under sections 66-68 of the Employment Act. The charges were held unreasonable, vexatious and an affront to fair treatment. The application was allowed: certiorari quashed the decision to charge; prohibition barred further prosecution; the 1st respondent was ordered to pay costs.
Key legal issues
#01
Whether the applicant met the conditions for certiorari and prohibition against the criminal prosecution
Holding
Yes; the charges were unreasonable, vexatious and unfair because the applicant was not a director, was no longer employed, and the company was insolvent and under receivership.
Reasoning
The court found the applicant was CEO but not a director and not a signatory to company bank accounts. His employment was terminated on 28th May 2012 for insolvency, before charges were preferred, and he was himself owed Kshs.16,506,800. Payment of wages was beyond him. A labour officer instituting charges must show a prima facie case on reasonable grounds; none existed. The proper remedy for employees of an insolvent employer lies under sections 66, 67 and 68 of the Employment Act, not criminal prosecution.
p. 5
Legal principles established
#- The DPP's discretionary power to prosecute must be exercised reasonably and on reasonable grounds, not arbitrarily or oppressively.
- A prosecution is subject to judicial intervention where there is no prima facie case or where it is an abuse of process.
Court orders
#- 1.An order of certiorari quashing the decision of the 1st respondent to charge and prosecute the applicant with wilful failure to make payment or tender wages contrary to section 17(1) and (10) of the Employment Act in Milimani Criminal Case No. 517 of 2012.
- 2.An order of prohibition prohibiting the 1st and 2nd respondents from further prosecuting, adducing evidence, compelling the exparte applicant to attend court mentions, or carrying on with proceedings in Milimani Criminal Case No. 517 of 2012 or any other proceedings based on the same or related facts.
- 3.The 1st respondent to pay the costs of the suit.
- On appeal from
- High Court
- Judicial Review No. 205 of 2013
- Jurisdiction invoked
- Judicial review jurisdiction transferred from the High Court to this court by Odunga J; review of criminal prosecution under sections 17(1) and (10) of the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Department of Labour & 3 others Exparte Philip Omondi [2016] KEELRC 1841 (KLR)", Case Analysis (2016). Judicial Review No. 205 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1841/eng@2016-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.