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ELRCStruck OutNot stated in the judgment· [2020] KEELRC 676 (KLR)

James Makura M’Abira v Director of Public Prosecutions [2020] KEELRC 676 (KLR)

Employment and Labour Relations Court (court name not expressly printed; delivered at Nyeri, single Judge)
13 July 2020
2,805 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a public servant's constitutional petition because he did not plead specific rights violations, confirming ordinary employment disputes belong in employment law channels.

What this practically means

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Executive summary

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The Petitioner, formerly employed as State Counsel II in the Public Prosecutions Department from December 2003, was interdicted by a letter dated 23rd June 2011 requiring him to cease exercising his duties pending determination of a criminal case, which ended in acquittal under Section 215 of the Criminal Procedure Code. He petitioned the Office of the Director of Public Prosecutions, seeking declarations that the notice to show cause, stoppage of salary and dismissal proceedings breached Articles 27, 28, 41, 47 and 50 of the Constitution, orders of reinstatement, and judicial review orders of certiorari quashing the letters of 22nd May 2019 and 22nd April 2020 and prohibition against further disciplinary action. He relied on Section 62(3) of the Anti-Corruption and Economic Crimes Act, arguing entitlement to automatic reinstatement after acquittal. The Respondent, in grounds of opposition and a replying affidavit by Mrs. Dorcas Oduor, contended that the Petitioner was recommended for dismissal for gross misconduct by the Advisory Board under Section 17(1) of the ODPP Act after being accorded a fair hearing, and raised a preliminary objection that the Petition disclosed no constitutional issues. The Respondent relied on Anarita Karimi Njeru and related authorities on particularisation of constitutional violations, and argued the matter was a pure employment dispute. Upholding the objection, the court held the Petitioner had not particularised the rights infringed or the specific Articles impinged, and that an employment dispute does not meet the constitutional threshold. The Petition was struck out with no order as to costs.

Key legal issues

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01

Constitutional pleading threshold (preliminary objection)

Holding

The Petition failed to particularise the specific rights infringed and the manner of infringement, so the objection succeeded and the Petition was struck out.

Reasoning

Applying Anarita Karimi Njeru, the court held that generalised allegations of breach of Articles 27, 28, 41, 47 and 50, without tying each allegation to a specific Article and the precise act of infringement, do not invoke the court's jurisdiction. The Respondent's authorities on this threshold were accepted. The court also accepted that disciplinary processes distinct from criminal trials, and ordinary employment disputes, should be pursued through prescribed internal and ordinary mechanisms rather than by constitutional petition.

p. 4
02

Whether the disciplinary process amounted to double jeopardy or breach of fair hearing

Holding

Not decided on the merits; the court disposed of the matter on the preliminary objection.

Reasoning

The Respondent argued there was no double jeopardy because the Petitioner faced an internal disciplinary process, not another criminal trial, and that he had been issued a show cause notice, responded to it, and was accorded a fair hearing before the Advisory Board. The court did not determine these questions because it struck out the Petition on the threshold objection before reaching the merits.

p. 4

Legal principles established

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  • A party seeking constitutional redress must plead, with reasonable precision, the provision infringed and the manner of infringement.
  • An ordinary employment dispute that can be resolved under the parties' internal mechanisms and ordinary law does not meet the threshold of a constitutional petition.

Court orders

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  1. 1.The preliminary objection succeeds
  2. 2.The Petition is struck out
  3. 3.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 27(1),(2),(3), 28, 41, 47(1), 50(1), 50(2)(o)
  • Anti-Corruption and Economic Crimes Act, 2003Section 62(3)
  • Office of the Director of Public Prosecutions ActSection 17(1)
  • Employment ActSection 44(1)
  • Criminal Procedure CodeSection 215
  • ODPP Human Resource ManualSection 11.15
  • Public Service Commission Human Resource Policies and Procedures Manual for the Public Service, 2016Not specified

Cases cited (9)

  • Francis James Ndegwa v Tetu Dairy Co-operative Society Ltd
    [2016] eKLR
  • Harrikson versus Attorney General of Trinidad & Tobago
    (1980) AC 265
  • Methodist Church in Kenya Trustees & Another versus Rev. Jeremiah Muku & Another
    (2012) eKLR
  • Justice Amraphael Mbogholi Msagha v The Chief Justice of the Republic of Kenya & 7 Others
    [2006] eKLR
  • Cyprian Kubai vs Stanley Kanyonga Mwenda
    Nairobi High Court Misc. Application No. 612 of 2002 (unreported)
  • Anarita Karimi Njeru vs Republic (No. 1)
    [1979] K.L.R. 154
  • Dr. Korwa Adar & Others vs Attorney-General (citing Matiba vs Attorney-General, High Court Misc. Application No. 666 of 1990)
  • Republic v Secretary, Teachers Service Commission & Another ex Parte Samuel Mulamula Lipeya
    [2016] eKLR
  • Kenya National Examinations Council v Republic Ex Parte Geoffrey Gathenji Njoroge & Others
    Civil Appeal No. 266 of 1996
Jurisdiction invoked
Petition under Article 22 of the Constitution alleging infringement of Articles 27, 28, 41, 47 and 50 (as framed by the Petitioner)

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, "James Makura M’Abira v Director of Public Prosecutions [2020] KEELRC 676 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/676/eng@2020-07-13

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