Republic v Board of Kenya School of Law Ex Parte Morris Kiwinda Mbondenyi [2018] KEELRC 769 (KLR)
The bottom line
#A Kenyan court refused to reinstate a public officer via judicial review, ruling that ordinary employment disputes belong under the Employment Act, not judicial review.
What this practically means
#Executive summary
#Key legal issues
#Appropriateness of judicial review as a route to challenge termination of employment
The Court declined to exercise its discretion to grant certiorari because the applicant should have used the ordinary avenues under the Employment Act, 2007
The Court reasoned that ordinary employment disputes should first be determined under the Employment Act, 2007, which contains elaborate protections for employees. Granting certiorari would effectively grant reinstatement without examining the statutory factors in section 49, which require evidence to be interrogated. Judicial review is sui generis, discretionary, and concerned only with process, not merits. The applicant was not yet shut out by limitation, so the ordinary route remained open.
Validity of the Respondent's decision deeming the ex parte applicant to have resigned
The Court did not determine the merits of the deeming decision, treating the dispute as one of differing interpretations of the Circular and the Eric Cheruiyot decision
The Court framed the dispute as a clash of interpretations of Circular OP/CAB.20/7A and the Eric Cheruiyot judgment and its stay orders. Rather than resolve the interpretation on the merits through judicial review, the Court held that the validity and fairness of the employer's reasons and procedure are matters for the Employment Act framework (sections 35, 41, 45 and 49), not the judicial review route.
Legal principles established
#- Judicial review is concerned with the decision-making process, not with the merits of the decision
- Judicial review orders are discretionary and may be withheld even where grounds exist
- Judicial review in employment disputes should be an exception, not the avenue of choice for ordinary employees
Court orders
#- 1.The motion seeking judicial review orders (certiorari) was dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Judicial review jurisdiction of the Employment and Labour Relations Court (leave granted to commence judicial review proceedings); Employment Act, 2007 and Employment and Labour Relations Court Act referenced
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Board of Kenya School of Law Ex Parte Morris Kiwinda Mbondenyi [2018] KEELRC 769 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/769/eng@2018-11-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.