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ELRCStruck OutJudicial Review (not stated in judgment beyond leave granted on 4 June 2019)· [2019] KEELRC 560 (KLR)

Republic v Kerio Valley Development Authority Exparte David Kimosop [2019] KEELRC 560 (KLR)

Employment and Labour Relations Court
11 October 2019
RSRadido Stephen
1,115 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court struck out a judicial review case, confirming unfair termination claims belong in ordinary employment proceedings, not judicial review.

What this practically means

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Executive summary

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The ex-parte applicant, David Kimosop, was Managing Director of Kerio Valley Development Authority from 2012, with a second term due to expire in April 2018. He sought renewal; the Board recommended a two-year extension, but the Cabinet Secretary instead appointed him for three years with effect from 23 April 2018, and the Board ratified the appointment. The Head of Public Service, however, advised that under the Mwongozo Guidelines the applicant, having served two terms, was ineligible for extension and that the appointment should be limited to six months pending recruitment of a replacement. When the Board did not comply, the Cabinet Secretary directed compliance, and on 30 May 2019 the Board resolved to terminate the applicant's contract. The applicant commenced judicial review proceedings. The Court held that at the core of the claim was unfair termination of an ordinary employment contract; employment disputes are properly brought by Statement of Claim, Memorandum of Claim, or Petition, with judicial review reserved for employees with special or specific protections against removal. Since the case involved disputed facts, notably whether the applicant was heard before termination, judicial review was the wrong avenue. Applying the Karume principle and Article 159, the Court struck out the proceedings without delving into the merits, noting the cause of action was still within the limitation period, and made no order as to costs.

Key legal issues

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01

Proper procedural avenue for an unfair termination claim

Holding

Judicial review was the wrong avenue; a Statement of Claim, Memorandum of Claim or Petition was the proper route

Reasoning

The applicant's cause of action was unfair termination of an ordinary employment contract. Employment and labour rights under Articles 41 and 236 are enforced through the statutory framework of the ELRC Act and Employment Act, 2007 via a Statement of Claim or Memorandum of Claim, or a Petition if the threshold is met. Judicial review is appropriate only where the employee has special constitutional or statutory protections against removal. Disputed facts, such as whether the applicant was heard before termination, required a forum for interrogating evidence.

p. 3
02

Whether the Court should delve into the merits

Holding

The Court declined to determine the merits to avoid prejudicing the applicant

Reasoning

Because the applicant's cause of action remained within the prescribed limitation period, striking out without expressing views on the merits preserved his ability to pursue the claim in the proper forum. The Court invoked Article 159's command to administer substantial justice without undue regard to procedural technicalities, and applied the Karume principle that where a specific procedure is provided, it must be followed.

p. 3

Legal principles established

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  • Judicial review is an inappropriate remedy for ordinary employment disputes where facts are disputed; the claimant should file a claim so facts can be interrogated
  • Judicial review orders are discretionary and may be denied even where a case is proved

Court orders

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  1. 1.The legal proceedings be struck out with no order as to costs

Authorities

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Legislation

  • Constitution of KenyaArticle 159; Articles 41 and 236
  • Employment and Labour Relations Court Actnot specified
  • Employment Act2007

Cases cited (1)

  • Speaker of the National Assembly v Karume
    (2008) KLR 425
Jurisdiction invoked
Article 159 of the Constitution (judicial review jurisdiction; employment and labour relations jurisdiction under the Employment and Labour Relations Court Act)

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 Kerio Valley Development Authority Exparte David Kimosop [2019] KEELRC 560 (KLR)", Case Analysis (2019). Judicial Review (not stated in judgment beyond leave granted on 4 June 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/560/eng@2019-10-11

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