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ELRCPartially AllowedJudicial Review Application (leave granted 20.2.2020 by Onyango J)· [2020] KEELRC 1455 (KLR)

Dennis Kipkirui Maritim v Principals Secretary State Department for Correction Services & 4 others [2020] KEELRC 1455 (KLR)

High Court of Kenya
9 March 2020
OMOnesmus N. Makau
1,462 words in judgment
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The bottom line

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The High Court ordered Kenya Prisons to reinstate a dismissed recruit pending trial, ruling his acquittal gave a strong case that his dismissal was unlawful.

What this practically means

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Executive summary

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This was an inter-partes application in a judicial review matter seeking that leave granted on 20.2.2020 by Onyango J to apply for orders of certiorari, prohibition and mandamus operate as stay of the applicant's dismissal from the Kenya Prisons Training College on 2.1.2020. The applicant, represented by Mr. Savwa, argued his constitutional rights under Articles 47, 49 and 50 were breached as he was dismissed without a hearing despite having been acquitted - the criminal charge of malicious damage to property under section 339(1) of the Penal Code having been withdrawn under section 202 of the Criminal Procedure Code - as evidenced by court proceedings, a police signal and a DCI Police Clearance Certificate. State Counsel M/s Oyugi opposed, relying on authorities that stay is discretionary, should not undo completed decisions, and must consider public interest and good administration. Justice Makau framed a single issue: whether the leave should operate as stay. Applying the principles of completeness and public interest, he held that although the dismissal decision was complete, its implementation could be suspended and the applicant readmitted while validity was determined. He found a strong case of unlawfulness and that the section 202 termination amounted to an unconditional acquittal, so public interest favoured the stay. He directed that leave operate as stay of the dismissal, ordered the 1st, 3rd and 4th respondents to readmit and continue training the applicant, directed a priority hearing, and awarded costs in the cause. Delivered at Nairobi on 9 March 2020 by Onesmus N. Makau, Judge.

Key legal issues

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01

Whether leave should operate as stay of the dismissal

Holding

Yes - although the dismissal decision was complete, its implementation could be stayed; the applicant showed a strong case of unlawfulness and no public interest against the stay.

Reasoning

The court applied the principles of completeness and public interest. Though the dismissal decision had been made, the implementation could be suspended and the applicant re-admitted pending determination of validity. The criminal charge was withdrawn under section 202 CPC, amounting to an unconditional acquittal, evidenced by proceedings, a police signal and a DCI Clearance Certificate, establishing a strong case that the dismissal was unlawful.

p. 2
02

Whether public interest favours granting stay

Holding

Public interest favours granting the stay since the court must uphold individual rights including those of an acquitted person.

Reasoning

The respondent did not demonstrate how public interest would be violated. The charge of malicious damage to property was terminated under section 202 of the Criminal Procedure Code, amounting to an unconditional acquittal. The court reasoned that upholding the rights of an acquitted person serves public interest, and a stay should not perpetuate an illegality or violate good administration.

p. 2

Legal principles established

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  • Stay under leave in judicial review is discretionary and must be exercised judiciously
  • A stay order may suspend implementation of a decision already made, but cannot compel reinstatement before hearing
  • Grant of stay requires a balance between individual rights and public interest, and is usually refused unless a strong case of unlawfulness is shown

Court orders

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  1. 1.The leave granted to the applicant on 20.2.2020 to apply for orders of Certiorari and Prohibition to operate as stay of the decision of the 1st, 3rd and 4th respondents to dismiss the applicant from training at the Kenya Prisons Training College pending hearing and determination of the suit
  2. 2.The 1st, 3rd and 4th respondents to readmit the applicant to the college and continue to offer the required training pending hearing and determination of the suit
  3. 3.The suit to be heard on a priority basis
  4. 4.Costs in the cause

Authorities

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Legislation

  • Constitution of KenyaArticles 47, 49, 50; Chapter 6
  • Penal CodeSection 339(1)
  • Criminal Procedure CodeSection 202
  • Kenya Prisons Standing OrdersRule 9

Cases cited (5)

  • Republic v National Hospital Insurance Fund Management Board Ex-parte Patanisho Maternity and Nursing Home
    [2019] eKLR
  • Taib A. Taib vs Minister for Local Government and others
    [2006] eKLR; HC.MISC A No. 158 of 2006
  • R vs Capital Markets Authority ex parte Joseph Mumo Kivai & another
    [2012] eKLR
  • R(H) vs Asworth Special Hospital Authority
    (2003) 1 WLR 127
  • Re Bival International SA (Bureau) Veritas
    (2005) EA 42
Jurisdiction invoked
High Court's supervisory powers over administrative decisions (judicial review - orders of certiorari, prohibition and mandamus)

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, "Dennis Kipkirui Maritim v Principals Secretary State Department for Correction Services & 4 others [2020] KEELRC 1455 (KLR)", Case Analysis (2020). Judicial Review Application (leave granted 20.2.2020 by Onyango J). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1455/eng@2020-03-09

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