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ELRCDismissedJudicial Review Application No.3 of 2017· [2020] KEELRC 949 (KLR)

Victor Rutto v Patrick Muliro & 2 others [2020] KEELRC 949 (KLR)

Employment and Labour Relations Court of Kenya
4 June 2020
4,868 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A sacked SACCO CEO lost his bid for reinstatement and pension payments because Kenya's employment court says those claims need a full lawsuit, not judicial review.

What this practically means

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Executive summary

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Victor Rutto, formerly CEO of Egerton University Sacco, sought judicial review orders of mandamus to compel the respondents to pay accrued pension contributions and to allow him to resume his position as CEO, and certiorari to quash the decision appointing Jim Simwelo as CEO. He claimed that after the High Court quashed the 2015 inquiry report that had led to dismissals, he was sent on leave, demoted to FOSA manager on the basis of enhanced qualifications he did not meet, and denied a hearing, contrary to court orders and the Fair Administrative Actions Act. The respondents raised preliminary objections (breach of SACCO Regulations, sub judice and res judicata as to Nakuru High Court JR No.21 of 2015, abuse of process) and argued the matter was an employment dispute outside judicial review, that he accepted the FOSA manager position and was paid all arrears. The court dismissed the objections on the Regulations, holding subsidiary rules cannot override the law, and found no res judicata or sub judice since the earlier JR concerned the inquiry report and surcharges, not reinstatement. However, applying Grain Bulk Handlers and Mukisa Biscuits principles on the scope of judicial review, the court held that reinstatement under section 49 of the Employment Act, and the pension claim, require evidence best adduced in a Memorandum of Claim, not affidavits in judicial review proceedings. The application was dismissed with costs to the respondents on 4th June 2020.

Key legal issues

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01

Whether the preliminary objections (sub judice, res judicata, breach of SACCO Regulations, abuse of process) had merit

Holding

The objections on subsidiary regulations failed, as did the res judicata and sub judice objections; the applicant was properly before the court

Reasoning

The Regulations relied on govern internal SACCO operations and being subsidiary legislation cannot override the law. On res judicata and sub judice, the court compared the earlier High Court JR No.21 of 2015, which dealt with the inquiry report and surcharges, with the present application concerning reinstatement and pension, and found a clear distinction between the matters.

p. 5
02

Whether judicial review orders of mandamus and certiorari should issue for reinstatement, pension contributions and quashing of the new CEO's appointment

Holding

The orders were refused; employment disputes require a Memorandum of Claim, not judicial review

Reasoning

Judicial review is a special supervisory jurisdiction confined to legality, rationality and procedural propriety. Reinstatement under section 49 of the Employment Act and the pension claim require interrogation of facts and evidence, which affidavits cannot resolve. The applicant, well represented and conversant with the court's procedure, ought to have filed a Memorandum of Claim.

p. 6

Legal principles established

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  • Preliminary objections must be pure points of law not dependent on disputed facts
  • Subsidiary regulations cannot override the law
  • Where a specific procedure for redress is prescribed by the Constitution or an Act of Parliament, it must be strictly followed
  • Judicial review jurisdiction is supervisory and limited to legality, rationality and procedural propriety
  • Employment disputes such as reinstatement and pension claims must be pursued by Memorandum of Claim rather than judicial review

Court orders

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  1. 1.The judicial review application is dismissed
  2. 2.Costs to the respondents
Jurisdiction invoked
Sections 3, 4, 7, 9 and 11 of the Fair Administrative Actions Act; Section 12 of 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, "Victor Rutto v Patrick Muliro & 2 others [2020] KEELRC 949 (KLR)", Case Analysis (2020). Judicial Review Application No.3 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/949/eng@2020-06-04

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