Republic v Acting County Secretary County Government of Nandi & another Ex parte Sikuku Emmanuel Wanjala [2018] KEELRC 2552 (KLR)
The bottom line
#Kenya's Employment Court dismissed a dismissed county worker's attempt to overturn his interdiction, holding it was a temporary, lawful step pending disciplinary investigations.
What this practically means
#Executive summary
#Key legal issues
#Whether certiorari lies against an interim interdiction decision
Certiorari cannot issue because the interdiction was interim, made within delegated statutory powers, and not without or in excess of jurisdiction nor in breach of natural justice.
The court noted the 1st respondent's powers were statutory and delegated by the Nandi County Public Service Board. The interdiction was preliminary, pending investigations, with the applicant still on the payroll and entitled to a hearing. Since certiorari only issues for decisions without or in excess of jurisdiction or in breach of natural justice, none of which was established, the order could not issue.
Effect of the ex parte applicant's new employment with Trans Nzoia County Government
By taking up new employment while investigations were ongoing, the applicant effectively frustrated his own employment with the respondents and undermined the good faith basis for his application.
The court found the applicant remained an employee during interdiction but sought transfer of his payroll to Trans Nzoia County Government. Holding two public offices simultaneously is impermissible. His plan to reserve his Nandi employment for return after a five-year contract demonstrated lack of good faith, though he should not be penalised for mitigating his circumstances by securing new work.
Suitability of judicial review as a vehicle for employment disputes
Judicial review is a problematic avenue for employment grievances because it prevents interrogation of the employment record and circumstances of termination.
Relying on the Kenyatta International Convention Centre case, the court observed that once an employee enters through judicial review, the court cannot examine the employment record or the reasons and circumstances of termination, which are the factors that would inform whether reinstatement is granted. The application consequently failed.
Legal principles established
#- Certiorari issues only where a decision is made without or in excess of jurisdiction or where rules of natural justice are not complied with
- An interdiction is not a termination of employment; the employee remains in employment pending conclusion of disciplinary proceedings
- Reinstatement is an exceptional final-order remedy that can only issue in the clearest of cases
- A public officer cannot hold two public offices simultaneously; taking new employment while on interdiction with disciplinary proceedings pending frustrates the original employment
Court orders
#- 1.The application for Judicial Review fails and is dismissed
- 2.Costs awarded to the Respondents
- Jurisdiction invoked
- Employment and Labour Relations Court Act, 2011, section 12(3); judicial review under the Court's Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Acting County Secretary County Government of Nandi & another Ex parte Sikuku Emmanuel Wanjala [2018] KEELRC 2552 (KLR)", Case Analysis (2018). Judicial Review No. 4 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2552/eng@2018-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.