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ELRCAllowedJudicial Review Application (Notice of Motion dated 24th August 2020)· [2020] KEELRC 38 (KLR)

Republic v Wilson Sossion Secretary General Knut & 2 others; Valentino Muriunga (Interested Party) Ex Parte Caxton Miungi [2020] KEELRC 38 (KLR)

High Court of Kenya (Judicial Review)
4 November 2020
4,709 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's High Court quashed KNUT's suspension of a branch official because the union's constitution gave the Secretary General no power to do it.

What this practically means

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Executive summary

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The Ex Parte Applicant, Caxton Miungi, sought orders of certiorari and prohibition to quash and prevent implementation of a decision by the 1st Respondent (KNUT's Secretary General) contained in a letter dated 21st July 2020 suspending him as Executive Secretary of KNUT Meru Central Branch (3rd Respondent). The suspension followed a meeting of Branch Executive Secretaries in Nyeri and a memorandum they wrote to the Teachers Service Commission, said to breach Articles XIV(5) and X(A) of the KNUT constitution. The 1st and 2nd Respondents defended the suspension as a lawful stepping-stone to an ongoing disciplinary process and argued the application was premature; the Interested Party was appointed Acting Executive Secretary. The 3rd Respondent supported the Applicant, contending the suspension was unilateral, unprocedural and without reference to the Branch Executive Council. The court framed judicial review questions on process, jurisdiction, hearing and relevant considerations, holding that judicial review does not examine merits. Under Article X of the KNUT constitution, suspension of a branch officer requires a two-thirds majority decision of the Branch Executive Committee, with the NEC playing only an appellate role. There was no evidence the BEC met or that the Applicant was heard, and the 1st Respondent had no jurisdiction at first instance. The court quashed the suspension as illegal, null and void, prohibited the Interested Party from assuming the office, and awarded costs to the Applicant and the 3rd Respondent jointly and severally against the 1st and 2nd Respondents.

Key legal issues

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01

Whether the 1st Respondent (NEC/Secretary General) had jurisdiction to suspend a branch Executive Secretary

Holding

He had no such power under the KNUT constitution; suspension of a branch officer is by a two-thirds majority of the Branch Executive Committee.

Reasoning

Article X of the KNUT constitution vests the power to suspend a branch officer in the Branch Executive Committee acting by a two-thirds majority decision of all members entitled to attend and vote. The NEC's role regarding branch officials is appellate, arising after the branch process. Since the 1st Respondent lacked jurisdiction at the first instance, the purported suspension was illegal, null and void irrespective of the reasons relied upon.

p. 5
02

Whether the decision-making process complied with fair hearing requirements

Holding

No evidence that the BEC met or that the Ex Parte Applicant was heard before the ouster.

Reasoning

The court found no evidence that the Branch Executive Committee as constituted under the KNUT constitution met to deliberate on the removal, nor any evidence that the Ex Parte Applicant was given a hearing before the purported suspension. In judicial review the court examines process, not merits, and the absence of a hearing and of the mandated organ's involvement rendered the decision amenable to quashing.

p. 5
03

Whether the application was premature given the ongoing disciplinary process

Holding

Rejected; the ouster had already been effected and was without jurisdiction.

Reasoning

The 1st and 2nd Respondents argued the application was premature since internal disciplinary procedures were ongoing and the Applicant was merely suspended, not removed. The court nonetheless granted certiorari and prohibition, holding the decision to oust the Applicant illegal, null and void for want of jurisdiction, and prohibited the Interested Party from assuming the office.

p. 5

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision itself
  • A decision-maker acting without jurisdiction renders the decision illegal, null and void, and it is unnecessary to inquire into the other review grounds

Court orders

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  1. 1.An order of certiorari to remove and quash the decision of the 1st Respondent contained in the letter dated 21st July 2020 for being manifestly illegal, null and void
  2. 2.An order of prohibition directed against the 1st, 2nd and 3rd Respondents from allowing the Interested Party to assume the duties of Branch Executive Secretary of the 3rd Respondent
  3. 3.Costs of the suit to be paid by the 1st and 2nd Respondents jointly and severally to the Ex Parte Applicant and the 3rd Respondent

Authorities

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Legislation

  • Kenya National Union of Teachers Constitution, Rules and Regulations 2015Article XIV(5); Article X(A)(7)/(8); Article IX(C)(7); Article X(E)(5); Article X(C)(5)(L); Article X(d)(5); Article X
  • Judicial Review procedure (Notice of Motion dated 24th August 2020)Orders of certiorari and prohibition

Cases cited (6)

  • Republic v Migori County Government & Another Ex parte Nyangi John Juma
    [2018] eKLR
  • Evan Rees and Others vs. Richard Alfred Crane
    [1994] 2 WLR
  • Nancy Makokha Baraza v Judicial Service Commission & 9 Others
    [2012] eKLR
  • Kebeso David v Kenyalta University & 3 Others
    [2017] eKLR
  • Republic v County Secretary and Head of Public Service, Bomet County & Another Ex parte Bernard Sowek
    [2017] eKLR
  • Municipal Council of Mombasa v Republic & Umoja Consultants Limited
    [2002] eKLR
Jurisdiction invoked
Judicial review jurisdiction over the decision of the 1st Respondent contained in the letter dated 21st July 2020 suspending the Ex Parte Applicant as Executive Secretary of KNUT Meru Central Branch

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 Wilson Sossion Secretary General Knut & 2 others; Valentino Muriunga (Interested Party) Ex Parte Caxton Miungi [2020] KEELRC 38 (KLR)", Case Analysis (2020). Judicial Review Application (Notice of Motion dated 24th August 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/38/eng@2020-11-04

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