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ELRCDismissedPetition No 81 of 2018· [2020] KEELRC 884 (KLR)

Charles Oyoo Kanyangi & 43 others v Judicial Service Commission [2020] KEELRC 884 (KLR)

Employment and Labour Relations Court (transferred from the High Court)
12 June 2020
5,083 words in judgment
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The bottom line

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Kenya's Employment Court dismissed 40 former magistrates' constitutional challenge to their 2004 retirements, mainly because they waited 13 years and pleaded their case too vaguely.

What this practically means

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Executive summary

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Forty former magistrates retired in public interest in 2004 following the Ringera Report petitioned the High Court (later transferred to the Employment and Labour Relations Court) seeking declarations that their retirement violated Sections 70(a) and 74(1) of the former Constitution and regulations 24, 25, 26 and 28 of the Judicial Service Commission Regulations, certiorari to quash the Report findings and the retirement letters, reinstatement or compensation, and damages. The Respondent (Judicial Service Commission) contended that the retirement complied with Regulation 28 of the Judicial Service Regulations, that the petitioners were given an opportunity to respond to show cause letters, that the petition failed the Anarita Karimi Njeru precision threshold, and that the claim was barred by a 14-year unexplained delay. Justice Maureen Onyango framed five issues. She held the petitioners guilty of undue laches, finding the 14-year delay inordinate and unexplained, and rejecting the assertion that the Respondent was obliged to supply the Ringera Report. She held the petition failed the Anarita Karimi Njeru threshold for failing to plead with precision the constitutional provisions violated and the manner of violation. She found the Respondent complied with Regulation 28, as the show cause letters specified the allegations and none of the petitioners requested particulars. She found no proof of violation of Sections 70(a) and 74(1), and struck out the claims of the 15th, 20th, 23rd, 32nd and 40th petitioners as wrongly joined, they not having been retired pursuant to the Ringera Report. The petition was dismissed with each party bearing their own costs.

Key legal issues

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01

Undue laches

Holding

The 14-year delay was inordinate and unexplained; the claim that the Respondent should have supplied the Ringera Report was rejected

Reasoning

The Petitioners retired on 12th March 2004 and filed in 2017 without explanation. As advocates, they knew or ought to have known the consequences of delay. The Respondent could not know they intended to rely on the report; they could have requested it or sought court orders to compel its release.

p. 7
02

Precision in constitutional petitions

Holding

The petition failed the Anarita Karimi Njeru threshold as it did not specify the constitutional provisions violated or the manner of violation

Reasoning

Apart from citing Sections 70(a) and 74(1), the Petitioners did not outline the specific infringements. The Court cannot decipher violations from the prayers; the violated provisions and manner of violation must be pleaded in the body of the petition.

p. 7
03

Compliance with Regulation 28 of the Judicial Service Regulations

Holding

The Respondent complied with Regulation 28; show cause letters specified allegations with specificity and each petitioner responded in detail

Reasoning

Each notice to show cause specified the allegations and each petitioner responded in detail. None requested further particulars or evidence. Regulation 28(1) required notification of complaints and the substance of any detrimental report, which was done.

p. 8
04

Alleged violation of Sections 70(a) and 74(1)

Holding

Not proved; citing constitutional sections without specifying the acts constituting breach is insufficient

Reasoning

The Petitioners pleaded humiliation, mental torture and disgrace but none of these averments were demonstrated by evidence. No details of acts constituting the breaches were given.

p. 8
05

Wrongful joinder of certain petitioners

Holding

The 15th, 20th, 23rd, 32nd and 40th Petitioners were not retired pursuant to the Ringera Report and were wrongly joined

Reasoning

The Respondent showed these petitioners were retired for other reasons, before the report's release or without public interest letters; these averments were not contested.

p. 7

Legal principles established

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  • A constitutional petition must set out with reasonable precision the provisions said to be infringed and the manner of infringement, failing which it fails the threshold
  • Delay in filing a constitutional petition must not be inordinate and must be plausibly explained; written submissions cannot substitute for proven facts explaining delay

Court orders

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  1. 1.The petition is dismissed.
  2. 2.Each party shall bear their own costs.

Authorities

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Legislation

  • Constitution of Kenya (Repealed)Sections 70(a), 74(1)
  • Constitution of Kenya 2010Articles 27(1),(2), 28, 48, 50, 159(2)(d)
  • Judicial Service Regulations (Repealed)Regulation 28
  • Judicial Service Commission Regulations (Repealed)Regulations 24, 25, 26, 27, 28
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Repealed Employment Actnot specified

Cases cited (8)

  • Anarita Karimi Njeru v Republic
    [1976-1980] KLR 1272
  • D. K. Njagi Marete v Teachers Service Commission
    [2013] eKLR
  • John Benson Githinji v The Attorney General
    [2014] eKLR
  • Priscilla Mwaura Kimani & 2 Others v Attorney General
    [2019] eKLR
  • Judicial Service Commission v Gilbert Mwangi
    [2019] eKLR
  • Utalii Transport Company Limited & 3 Others v NIC Bank & Another
    [2014] eKLR
  • Daniel Kibet Mutai & 9 others v Attorney General
    [2019] eKLR
  • Wellington Nzioka Kioko v Attorney General
    [2018] eKLR
On appeal from
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Jurisdiction invoked
Original constitutional jurisdiction under Sections 70(a) and 74(1) of the former Constitution, matter transferred to this Court by ruling of Mwita J. of 15th August 2018

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, "Charles Oyoo Kanyangi & 43 others v Judicial Service Commission [2020] KEELRC 884 (KLR)", Case Analysis (2020). Petition No 81 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/884/eng@2020-06-12

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