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ELRCAllowedJudicial Review application (Ex parte Chamber Summons) dated 29th January 2018· [2018] KEELRC 1548 (KLR)

Republic v Micro and Small Enterprises Authority & 2 others Ex-Parte Patrick Z. Keige Mwangi [2018] KEELRC 1548 (KLR)

Employment and Labour Relations Court
28 June 2018
6,261 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 paused a state agency CEO's compulsory leave and replacement because the board removed him without a fair hearing.

What this practically means

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Executive summary

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This is a ruling on an ex parte Chamber Summons dated 29th January 2018 by the Chief Executive Officer of the Micro and Small Enterprises Authority seeking leave to institute judicial review proceedings. The applicant challenged the decision of 17th January 2018 sending him on compulsory leave, which he contended was made when a Finance, Human Resource and Administration Committee meeting was unlawfully converted into a full Board meeting without the 14 days' notice required by section 8(1)(d) of the State Corporations Act, and without hearing him, contrary to Article 47 of the Constitution and section 4(3) of the Fair Administrative Action Act. He further challenged the Cabinet Secretary's appointment of Nancy W. Muya (the Interested Party) as Acting CEO on 18th January 2018. The respondents and the Interested Party opposed, arguing that the compulsory leave was to allow a forensic audit following Auditor-General queries, that the applicant continued to enjoy full pay and benefits, and that the application was premature. The respondents also contended compulsory leave is not punishment under the MSEA HR Manual. The court, applying Order 53 rule 1 and the Waki J test in Republic v County Council of Kwale ex parte Kondo, held it need only find an arguable case without going into merits. Finding arguable issues, notably the alleged denial of a hearing, it granted leave to file substantive judicial review proceedings for certiorari and prohibition, directed that the leave operate as a stay of the two impugned decisions, and awarded costs in the cause.

Key legal issues

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01

Whether leave to apply for judicial review of the compulsory leave decision and the Acting CEO appointment should be granted

Holding

Leave was granted; the court found arguable issues including the alleged lack of fair hearing before the impugned board decision.

Reasoning

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.

p. 8
02

Whether allegations of breach of natural justice disclose a prima facie case at the leave stage

Holding

Yes; allegations of denial of an opportunity to be heard suffice to establish a prima facie case for leave.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.Leave granted to the ex parte applicant to file substantive judicial review proceedings for orders of certiorari and prohibition as sought
  2. 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. 3.Costs in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 27
  • Constitution of Kenya, 2010Article 152
  • Law Reform ActSections 8 and 9
  • Civil Procedure Rules, 2010Order 53 rules 1, 2, 3 and 4
  • Micro and Small Enterprises ActNo. 55 of 2012, Section 29
  • State Corporations ActCap 466/446, Sections 5(3), 8(1)(d)
  • Fair Administrative Action ActSection 4(3)
  • Mwongozo; the Code of Good Governance for State Corporations

Cases cited (4)

  • Republic vs. Land Disputes Tribunal Court Central Division and Another Ex Parte Nzioka
    [2006] 1 EA 321
  • Justice Amrahael Mbogholi Msagha Vs Chief Justice of the Republic of Kenya & 7 others
    (2006) eKLR
  • Republic vs County Council of Kwale & Another Ex-Parte Kondo & 57 others
    Mombasa HCMCA No. 384/1996
  • Murugi Kariuki vs AG
    Civil Appeal No. 70 of 1991 (1991-1994) EA 156, (1992) KLR 8
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

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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 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.