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ELRCDismissedPetition No. 51 of 2017· [2018] KEELRC 1364 (KLR)

George Weke Jaba v National Bank of Kenya Limited & 14 others [2018] KEELRC 1364 (KLR)

Employment and Labour Relations Court of Kenya
31 July 2018
9,468 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~38 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a banker's constitutional petition for being vague, duplicating an existing case, and attempting to gag investigators.

What this practically means

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Executive summary

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The Petitioner, a former Chief Risk Officer of National Bank of Kenya summarily dismissed in April 2016, filed this petition in the Employment and Labour Relations Court seeking declarations that the Respondents maliciously made damaging unsubstantiated allegations against him, misused public investigative bodies to engineer his arrest and prosecution, and enforced a 'gag order' against him, all in violation of various constitutional articles. He also sought an order compelling disclosure of information supporting the allegations, and injunctions restraining the Respondents and the investigative/prosecution agencies from harassing or prosecuting him, pending his employment claim in Cause No. 2212 of 2016. The 1st to 12th Respondents denied interference, asserting the independence of the Banking Fraud Unit investigations and justifying the gag order under the Banking Act and Prudential Guidelines. The 13th and 14th Respondents raised a preliminary objection on want of cause of action and jurisdiction. The 13th and 15th Respondents submitted the petition was premature as no charges had been preferred. Justice Wasilwa held that the impugned letter by the 3rd Respondent was a report, not a directive; there was no evidence the 14th Respondent acted on it; and the Court cannot impute anticipatory action or gag constitutionally mandated organs. The petition failed the Anarita Karimi Njeru precision standard, sought to 'appeal' this Court's own 18th May 2017 orders contrary to the proper avenue of appeal or review, and duplicated matters in Cause No. 2212 of 2016. The entire Petition was dismissed with costs to the Respondents.

Key legal issues

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01

Abuse of process / multiplicity of actions

Holding

The entire Petition is an abuse of court process because the orders sought mirror issues pending in Employment Cause No. 2212 of 2016 and the Petition in essence seeks to appeal the Court's own earlier orders.

Reasoning

The Court found that the prayers relate to the Petitioner's employment relationship with the 1st Respondent, which is already the subject of Cause No. 2212 of 2016. The Petition also challenged the 18th May 2017 orders ('gag order'), and the proper avenue for that grievance was appeal or review. Relying on the abuse-of-process principles cited to it, the Court held the Petition untenable and dismissed it in its entirety with costs.

02

Whether investigative and prosecutorial bodies can be restrained from exercising their mandates

Holding

No — absent evidence that the 13th to 15th Respondents acted unlawfully or under the direction of the 1st to 12th Respondents, the Court cannot stop them from exercising their constitutional and statutory mandates.

Reasoning

The impugned letter by the 3rd Respondent was not a directive. The 14th Respondent is established under Article 243 and the National Police Service Act; the 12th and 15th Respondents are independent constitutional bodies. There was no evidence of illegal action emanating from the letter, so the alleged infringement was premature and anticipatory, which the Court cannot impute.

p. 11
03

Pleading standards for constitutional petitions

Holding

The Petition fails the Anarita Karimi Njeru standard of reasonable precision; the Petitioner did not specify the damaging and unsubstantiated allegations complained of.

Reasoning

The Court applied the principle in Anarita Karimi Njeru v The Republic, cited with Mumo Matemu, that a petitioner must plead with reasonable precision and identify the specific constitutional articles infringed and the manner of infringement. The Petitioner's vague reference to unspecified 'damaging and unsubstantiated allegations' did not meet that threshold.

p. 11
04

Access to documents/information for defence

Holding

Prayer 4 fails because the Petitioner can obtain the information he needs through the Evidence Act (notice to produce) and the Civil Procedure Act rather than a constitutional petition.

Reasoning

The Court found the prayer vague as to what documents were sought and held that the statutory mechanism for production of documents — Section 69 of the Evidence Act on notice to produce and secondary evidence — provides an adequate alternative remedy, so no constitutional order was necessary.

p. 12

Legal principles established

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  • A constitutional petition must be pleaded with reasonable precision, setting out the particular provisions of the Constitution said to have been infringed
  • A party cannot use a constitutional petition as a vehicle to appeal or review orders of the same court; the remedy is appeal or review
  • The court will not gag constitutionally mandated investigative and prosecutorial organs on the basis of anticipatory or apprehended action absent evidence of actual unlawful conduct

Court orders

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  1. 1.The entire Petition is dismissed
  2. 2.Costs of the Petition awarded to the Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 19, 20, 24, 27, 28, 29, 33, 35, 40, 41, 47, 47(2), 48, 50, 73, 152(2), 157, 157(4), 157(10), 162(2), 162(3), 243, 243(4), 259
  • Banking ActSection 31(2)
  • Central Bank of Kenya Prudential Guidelines on Corporate Governance CBK/PG/02 (2013)Clause 4.2.5
  • Access to Information ActSection 6(1)(e), (f), (g) and (h)
  • Attorney General Act, 2012Section 5 (including 5(b) and (k))
  • National Police Service ActSections 24, 28, 35
  • Evidence ActSections 68(1)(a), 69
  • Civil Procedure ActNot specified
  • Industrial Court Act, 2011Section 12

Cases cited (15)

  • Dennis Edmond Apaa and Others v Ethics and Anti Corruption Commission
    Nairobi Petition No. 317 of 2012 [2012] eKLR
  • R v Ward
    [1993] 2 All ER 557
  • Geoffrey Muhuzani Anyira v Director of Public Prosecutions & 2 others
    [2016] eKLR
  • David Mathenge Ndirangu v Director of Public Prosecutions & 3 others
    [2014] eKLR
  • Republic v Chief Magistrate's Court at Mombasa Ex Parte Ganijee & Another
    [2002] 2 KLR 703
  • United States International University (USIU) v Attorney General
    (2012) eKLR
  • Gcaba v Minister of Safety and Security & Others
    CCT 64/08 (2009) ZACC 26
  • Anarita Karimi Njeru v The Republic
    (1976-1980) KLR 1272
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    (2013) eKLR
  • Bitange Ndemo v Director of Public Prosecutions & 4 others
    [2016] eKLR
  • Muchanga Investments Limited v Safaris Unlimited (Africa) Ltd & 2 Others
  • Beinosi v Wiyley
    (1973) SA 721
  • Sarak v Kotoye
    (1992) 9 NWLR 9PT 264
  • Thuku Kirori & 4 Others v County Government of Murang'a
    [2014] eKLR
  • Petition 32 of 2014 (Supreme Court of Kenya, Ibrahim; Ojwang; Wanjala; Njoki Ndungu and Lenaola SCJJ)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (court of the status of the High Court, able to enforce fundamental rights ancillary to employment and labour relations, as per USIU v Attorney General as cited)

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, "George Weke Jaba v National Bank of Kenya Limited & 14 others [2018] KEELRC 1364 (KLR)", Case Analysis (2018). Petition No. 51 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1364/eng@2018-07-31

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