Republic v Micro and Small Enterprises Authority & 2 others Ex-Parte Patrick Z. Keige Mwangi [2018] KEELRC 1548 (KLR)
The bottom line
#A Kenyan court paused a state agency CEO's compulsory leave and replacement because the board removed him without a fair hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether leave to apply for judicial review of the compulsory leave decision and the Acting CEO appointment should be granted
Leave was granted; the court found arguable issues including the alleged lack of fair hearing before the impugned board decision.
The court applied Order 53 rule 1 and the settled principle that leave-stage review requires only an arguable case, not proof of merits. The applicant alleged that the decision was made by an improperly constituted meeting, without notice under section 8(1)(d) of the State Corporations Act, and without hearing him, contrary to Article 47 and the Fair Administrative Action Act. Those allegations, unrebutted, raised arguable issues necessitating grant of the leave sought.
Whether allegations of breach of natural justice disclose a prima facie case at the leave stage
Yes; allegations of denial of an opportunity to be heard suffice to establish a prima facie case for leave.
Relying on Murugi Kariuki v AG, the court accepted the proposition that once breach of the rules of natural justice is alleged and unrebutted, the applicant discloses a prima facie case and should be granted leave. The applicant was ordered out of the 17th January 2018 meeting and his case was deliberated without him, contrary to Article 47 of the Constitution and section 4(3) of the Fair Administrative Action Act.
Legal principles established
#- The test for granting leave to apply for judicial review is whether, on the material available and without going into the matter in depth, the applicant has an arguable case fit for further investigation at a full inter partes hearing.
Court orders
#- 1.Leave granted to the ex parte applicant to file substantive judicial review proceedings for orders of certiorari and prohibition as sought
- 2.The leave granted to operate as a stay of the 1st and 2nd Respondents' impugned decisions sending the applicant on compulsory leave and appointing the Interested Party as Acting Chief Executive Officer, contained in the letters dated 17th and 18th January 2018
- 3.Costs in the cause
- Jurisdiction invoked
- Sections 8 and 9 of the Law Reform Act, Cap 26 and Order 53 rules 1-4 of the Civil Procedure Rules, 2010 (judicial review leave jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Micro and Small Enterprises Authority & 2 others Ex-Parte Patrick Z. Keige Mwangi [2018] KEELRC 1548 (KLR)", Case Analysis (2018). Judicial Review application (Ex parte Chamber Summons) dated 29th January 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1548/eng@2018-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.