Peter Ndegwa Kimenju v Commandant, Law Enforcement Academy, Kenya Wildlife Service (KWS) & another [2019] KEELRC 2433 (KLR)
The bottom line
#The High Court dismissed a KWS ranger's challenge to his discipline because he sued individual officers instead of Kenya Wildlife Service and used the wrong legal process.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondents herein are non-suited.
- 2.Whether the matter herein has been properly brought by the ex parte applicant, and
- 3.Whether the ex parte applicant is entitled to the remedies
Key legal issues
#Whether the respondents were properly sued
The respondents, being employees of KWS, were non-suited; the proper respondent was KWS itself, a body corporate capable of suing and being sued under section 6 of the Wildlife Conservation and Management Act.
The court reasoned that a public authority acts through agents and employees, but this does not make the agents personally liable in judicial review. Section 6 of the Wildlife Conservation and Management Act establishes KWS as a body corporate with perpetual succession capable of suing and being sued, whereas section 11 does not give the Director-General that capacity. Orders against the named respondents alone would be in vain.
Whether judicial review was the proper vehicle
No. The disciplinary decisions were those of an employer in the exercise of disciplinary control, a contractual matter under private law, not an exercise of public authority.
Relying on Maseno University v Ochonga Okello and the KIPPRA line of cases, the court held that judicial review remedies in employment matters are only available where the contract of employment has statutory underpinning or where there is gross violation of fundamental rights. The applicant's employment by KWS was governed by private law and no statutory underpinning was shown.
Whether the applicant was entitled to the remedies sought
No; the application was dismissed in its entirety.
Both because the wrong parties were sued and because the wrong procedural vehicle was chosen, the orders of certiorari and prohibition could not issue. The court noted that even if it were sympathetic, no enforceable orders could be made against the respondents as agents.
Legal principles established
#- In judicial review proceedings the respondent must be the public body that made the decision; employees or agents exercising authority on behalf of a body corporate cannot be sued alone.
- A dispute between an employer and employee over disciplinary control is a private-law contractual matter inappropriate for judicial review unless the employment has statutory underpinning.
- A court should not make orders in vain.
Court orders
#- 1.The judicial review application is dismissed
- 2.Each party shall bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 8 rules 3 and 5 of the Civil Procedure Rules 2010; judicial review (supervisory) jurisdiction of the High Court
Relief refused
#Order of certiorari to quash the decision of the Commandant Law Enforcement Academy and the Director General KWS dated 6th February 2018
Applicant sued the wrong parties; the decision-making body, KWS, was not enjoined, and the dispute is a private-law employment matter
Orders of prohibition against termination/suspension and against salary deductions
Respondents did not make the decisions impugned; the decisions were made by KWS which is not a party
Costs
Each party shall bear its own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
From the foregoing I find that not only did the applicant sue the wrong persons but he also came to court through the wrong vehicle.
For these reasons, the application must fail with the result that it is accordingly dismissed. In view of the nature of the relationship between the applicant and the respondents, I order that each party shall bear its costs.
I concur with the above proposition and find that the breach or threatened breach of the appellants’ contract of employment was not a public act or matter of public law but was a matter of contractual relationship between the respondent and the appellants, governed by private law.
A judicial review proceeding is meant to check how a public body exercises its public authority. Therefore, every judicial review application must be aimed at a public body.
Issues in the judgment
#Judgment describes the application as brought under Order 8 rules 3 and 5 of the Civil Procedure Rules 2010 although it seeks judicial review orders (certiorari and prohibition), which are normally sought under Order 53.
The court's third framed issue ('Whether the ex parte applicant is entitled to the remedies') is never separately resolved on the merits; the application fails instead on parties and choice of vehicle.
The judgment refers inconsistently to the Wildlife Conservation and Management Act as 'Wildlife and Conservation Management Act' in the respondents' submissions section.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Peter Ndegwa Kimenju v Commandant, Law Enforcement Academy, Kenya Wildlife Service (KWS) & another [2019] KEELRC 2433 (KLR)", Case Analysis (2019). Judicial Review Application dated 20th June 2018 (Miscellaneous Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2433/eng@2019-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.