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ELRCDismissedChamber summons dated 18th January 2018· [2018] KEELRC 2485 (KLR)

Humphrey Makokha Nyongesa & another v Communications Authority of Kenya & 2 others [2018] KEELRC 2485 (KLR)

High Court of Kenya
5 February 2018
MOMaureen Onyango
5,083 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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Two second-year law students applied by chamber summons dated 18th January 2018 for judicial review orders of certiorari and prohibition against the Communications Authority of Kenya's decision to send its Director General on three months' compulsory leave to facilitate a human resource audit, plus declarations that the decision violated the Authority's Human Resource Policy Manual, Articles 10, 27 and 47 of the Constitution and was discriminatory. The application was originally lodged ex parte but the court directed service. The Authority raised a preliminary objection on locus standi and argued the matter was a private employment affair, relying on authority that suspension pending investigations is a holding operation to which natural justice does not apply. The Interested Party supported the applicants, invoking Article 258(c). The court framed two issues: the applicants' locus standi and whether the subject matter fell in the public or private arena. It held that the Constitution broadened standing but the applicants had to fit within Article 22 or 258; since only the Interested Party was affected and his duties were covered by an acting officer, the public suffered no loss and no standing was established. The court further held that compulsory leave pending investigation is not disciplinary action, that employment by a public body is a private contract unless statutorily underpinned, and that the Authority was not exercising administrative authority under Article 47 or the Fair Administrative Actions Act. The application was dismissed with no orders for costs.

Key legal issues

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01

Locus standi of the applicants under Articles 22 and 258

Holding

Applicants, self-described law students acting as 'good Samaritans' and in the greater public interest, did not demonstrate standing because no public interest was engaged

Reasoning

The court accepted that the Constitution has broadened standing, but held that a person enforcing the Constitution must fit one of the Article 22/258 categories and specify their capacity. Since only the Interested Party was affected by the compulsory leave and his duties were covered by an acting officer, the public suffered no loss and the applicants had no standing.

p. 7
02

Whether the decision to send the Interested Party on compulsory leave is administrative action reviewable by judicial review

Holding

No - it is a private employment law matter outside Article 47 and the Fair Administrative Actions Act

Reasoning

Judicial review supervises the decision-making process of administrative bodies. Compulsory leave pending audit is not disciplinary action but the start of an investigation; the employment relationship between the Authority and its Director General is a private contract without statutory underpinning, so judicial review remedies are unavailable.

p. 9
03

Whether employment with a public body automatically has statutory underpinning

Holding

No - a distinction must be drawn between a public body acting in its public capacity and acting as an ordinary employer

Reasoning

Counsel for the applicants had argued that employment by a statutory body attracts statutory underpinning. The court clarified, drawing on Eric Makokha v Lawrence Sagini, that statutory underpinning applies only where statute guarantees the employment and prescribes mandatory removal procedures, as with constitutional office holders.

p. 10

Legal principles established

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  • A public body acting as an ordinary employer enters into private contracts with employees; such employment disputes are governed by employment law and not Article 47 or the Fair Administrative Actions Act
  • Sending an employee on compulsory leave pending investigations is a holding operation to which rules of natural justice do not apply
  • Judicial review remedies are available in employment contracts only where there is statutory underpinning or gross and clear violation of fundamental rights

Court orders

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  1. 1.The application dated 18th January 2018 is dismissed
  2. 2.No orders for costs - each party to bear own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 22, 23, 258, 41, 47, 156, 165
  • Fair Administrative Actions Act, 2015Sections 2(2), 3, 4, 5(2), 6
  • Kenya Information and Communications ActSection 3 (No. 2 of 1998)
  • Employment ActSections 12, 41

Cases cited (14)

  • R. U. Kilifi Land Control Board & 9 Others Ex-Parte Owen Yaa Baya
    (2015) eKLR
  • Justice Amraphael Mbogholi Msagha vs Chief Justice of the Republic of Kenya & 7 Others
    (2006) eKLR
  • Lewis v Heffer & Others
  • Jacob Odhiambo & Others vs University of Nairobi
  • Communication Workers' Union & Another vs Communication Authority of Kenya
  • Mumo Matemo vs Trusted Society of Human Rights Alliance & 5 Others
  • Council for Civil Service Unions v Minister for Civil Service
    [1985] A.C. 374
  • Municipal Council of Mombasa vs Republic and Another
    [2002] EKLR
  • Pastoli v Kabale District Local Government Council and Others
  • An application by Bukoba Gymkhana Club
    [1963] EA 478
  • Republic vs Mwangi S. Kaimenyi, Ex-parte KIPPRA
  • Chief Constable of North Wales Police vs Evans
    (1982) I WLR 1155
  • Eric Makokha & Others vs Lawrence Sagini & Others
    C.A No. 20 of 1994 at Nairobi
  • John vs Rees
Jurisdiction invoked
Articles 22, 23, 47 and 258 of the Constitution as read with the Fair Administrative Actions Act (judicial review leave application under Order 53)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (21)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Humphrey Makokha Nyongesa & another v Communications Authority of Kenya & 2 others [2018] KEELRC 2485 (KLR)", Case Analysis (2018). Chamber summons dated 18th January 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2485/eng@2018-02-05

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