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ELRCAllowed· [2021] KEELRC 232 (KLR)

Republic v County Government of Kilifi [2021] KEELRC 232 (KLR)

Employment and Labour Relations Court of Kenya
2 December 2021
2,052 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 allowed an employee's challenge to a two-year-old unresolved disciplinary case, ruling employers must communicate disciplinary outcomes.

What this practically means

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Executive summary

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The Ex-parte Applicant sought leave under Order 53 of the Civil Procedure Rules, read with Rule 7(2) of the ELRC (Procedure) Rules, 2016, to commence judicial review proceedings against the Respondent over a disciplinary process begun on 9th January 2020 with his suspension and a show cause letter, whose outcome was never communicated to him. He sought leave to apply for certiorari to quash the disciplinary proceedings and prohibition of fresh proceedings on the same facts. The Respondent filed a notice of preliminary objection, which the court directed could be reserved for the substantive motion. The court found that two prior suits (Malindi ELRC Petition No. 1 of 2020 and Cause No. 3 of 2020) did not bar the application: the Petition was dismissed on the exhaustion principle without merits determination, and the Cause was withdrawn by agreement on 22nd October 2020. Although the verifying affidavit omitted the required averment about prior proceedings, the court, applying Article 159 of the Constitution and the Salat decision, declined to penalise the omission absent prejudice. The court also observed that leave is superfluous for judicial review premised on Article 47 and the Fair Administrative Action Act, citing recent authority. Nonetheless, finding a compelling prima facie complaint of violation of the right to fair administrative action, the court granted leave, with the substantive application to be filed and served within 21 days, and costs to abide the outcome of that application.

Key legal issues

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01

Whether prior litigation over the same subject matter barred the judicial review application

Holding

Neither prior suit barred the application: the Petition was dismissed on jurisdiction (not on the merits) and the Cause was withdrawn by agreement, so no previous proceedings were decided on merit.

Reasoning

The court perused the original court file of Malindi ELRC Cause No. 3 of 2020 and found it was withdrawn on 22nd October 2020 by agreement of the parties. The earlier Petition was dismissed on the exhaustion principle, without a merits determination. Accordingly, the proposed judicial review was neither pending elsewhere nor previously determined on its merits.

02

Whether the omission of the 'no other proceedings' averment from the verifying affidavit was fatal

Holding

No; the court declined to enforce the procedural requirement because the information was ascertainable from the application and the court records, and no prejudice would befall the Respondent.

Reasoning

Applying Article 159(2)(d) of the Constitution and the Salat decision, the court held that substantive justice prevails over procedural technicalities where the infraction causes no injurious prejudice. The court had itself established from the application and court records that prior suits were not decided on the merits.

p. 2
03

Whether leave is required for judicial review under Article 47 and the Fair Administrative Action Act

Holding

Leave is not required for constitutionally-based judicial review under Article 47 and the FAAA; such leave applications are superfluous, since Order 53 of the CPR only governs judicial review simpliciter.

Reasoning

The court traced the shift of judicial review remedies from sections 8 and 9 of the Law Reform Act to Article 47 of the Constitution and the Fair Administrative Action Act. Section 10 of the FAAA requires such applications to be heard without undue regard to procedural technicalities, and the FAAA rules contemplated by the Act have yet to be formulated. Hence Order 53 leave is unnecessary for constitutional judicial review, though the court nonetheless granted leave sought.

p. 3
04

Whether the prolonged disciplinary process warranted leave

Holding

Yes; the failure to conclude and communicate the outcome of disciplinary proceedings pending since January 2020 prima facie violated the right to fair administrative action.

Reasoning

The Respondent suspended the Applicant on 9th January 2020 and issued a show cause letter, but never communicated the outcome. The March 2021 redeployment implicitly lifted the suspension but did not terminate the disciplinary proceedings. The continued state of uncertainty was open, transparent-violation territory meriting leave.

p. 3

Legal principles established

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  • The purpose of the leave stage under Order 53 is to filter out frivolous and vexatious applications, permitting only deserving applicants to proceed to the substantive motion.
  • A procedural infraction that causes no injurious prejudice should not invalidate proceedings; courts should administer substantive justice without undue regard to procedural technicalities.
  • Order 53 of the CPR does not apply to judicial review proceedings premised on the Constitution and the Fair Administrative Action Act; leave in that context is superfluous.

Court orders

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  1. 1.Leave granted to the Ex-parte Applicant to commence Judicial Review proceedings against the Respondent as prayed, including to apply for quashing of the disciplinary proceedings and prohibition of fresh proceedings on the same facts
  2. 2.The substantive Judicial Review application to be filed and served within 21 days from the date of the order
  3. 3.Costs of the application to abide the outcome of the Judicial Review application to be filed

Authorities

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Legislation

  • Civil Procedure RulesOrder 53
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 7(2); Rule 28(3)
  • Constitution of Kenya, 2010Article 47; Article 159
  • Fair Administrative Action Act, 2015Part III; Section 10
  • Employment Actnot specified
  • Law Reform ActSections 8 and 9

Cases cited (4)

  • Republic vs County Council of Kwale & another Ex-parte Kondo & 57 others
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others
    [2013] eKLR
  • Felix Kiprono Matagei v Attorney General; Law Society of Kenya (Amicus Curiae)
    [2021] eKLR
  • JJ Okwaro & Co Limited v Firearms Licensing Board
    [2021] eKLR
Jurisdiction invoked
Order 53 of the Civil Procedure Rules read with Rule 7(2) of the Employment and Labour Relations Court (Procedure) Rules, 2016; Article 47 of the Constitution and the Fair Administrative Action Act, 2015

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 County Government of Kilifi [2021] KEELRC 232 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/232/eng@2021-12-02

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