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ELRCPartially AllowedJudicial Review Motion dated 4.3.2020 (leave granted 20.2.2020)· [2021] KEELRC 663 (KLR)

Dennis Kipkirui Maritim v Principal Secretary State Department for Correction Services & 4 others [2021] KEELRC 663 (KLR)

Employment and Labour Relations Court
22 October 2021
2,079 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court reinstated a prisons recruit dismissed without notice, a hearing, or written reasons, ruling that public institutions must follow fair procedures before sacking anyone.

What this practically means

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Executive summary

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The applicant, recruited in October 2019 as a Prisons Constable following a mass recruitment exercise, was admitted to the Kenya Prisons Staff Training College, Ruiru, but was dismissed on 2.1.2020 on the allegation that he had criminal records. He obtained a Police Clearance Certificate showing no criminal record and a letter from the OCPD Chepalungu, but the respondents refused to readmit him. He sought judicial review orders of certiorari, prohibition and mandamus; leave was granted on 20.2.2020, with a stay ordered on 9.3.2020 which was not complied with, leading to contempt proceedings against the 1st respondent that were deferred for amicable settlement. After the parties reported settlement on all issues save costs, the main Motion dated 4.3.2020 was disposed of by written submissions. The court framed two issues: whether the dismissal was done without due process, and whether the applicant was entitled to the reliefs sought. Applying Article 236, Article 47, the Fair Administrative Actions Act and section 45(2) of the Employment Act, the court found the applicant was dismissed without written reasons, supporting evidence, or an opportunity to be heard, contrary to due process. Certiorari was granted quashing the dismissal, with a direction that the applicant report back to the Training College with the next recruits upon producing a Police Clearance Certificate. Prohibition was refused as overtaken by events, and damages were refused as inappropriate under Order 53 and unpleaded. Costs of Kshs. 150,000 were awarded to the applicant.

Key legal issues

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01

Whether the applicant's dismissal from the Kenya Prisons Training College without prior notice, written reasons or a hearing violated due process

Holding

Yes - the dismissal was not in accordance with due process of law under Article 236, Article 47 of the Constitution, the Fair Administrative Actions Act and section 45(2) of the Employment Act

Reasoning

The court found the applicant was dismissed without being told the reason, without written reasons, without evidence supporting the alleged criminal record, and without an opportunity to defend himself. Had he been heard, he would have produced his Police Clearance Certificate showing no criminal record. The procedure followed fell short of the elaborate constitutional and statutory scheme governing fair administrative action.

p. 3
02

Whether damages were available in judicial review proceedings under Order 53

Holding

No - damages are not appropriate relief under Order 53 and were not pleaded; the cited petition-based awards were distinguishable

Reasoning

The applicant sought damages in submissions, relying on petition cases where courts awarded constitutional compensation. The court distinguished those precedents because they were petitions under the Constitution, whereas this matter was a judicial review motion under Order 53 Rules 1 & 2 of the Civil Procedure Rules. Damages were also not sought in the pleadings filed.

p. 4

Legal principles established

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  • A public officer shall not be dismissed or subjected to disciplinary action without due process of law (Article 236)
  • Where administrative action adversely affects rights, the affected person is entitled to prior notice, an opportunity to be heard and written reasons (Article 47 and sections 4(1)-(3) of the Fair Administrative Actions Act)

Court orders

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  1. 1.Order of certiorari quashing the decision by the 1st, 3rd and 4th Respondents dismissing the applicant from training at the Kenya Prisons Training College, Ruiru
  2. 2.Direction that the applicant shall report back to the Kenya Prisons Training College together with the next recruits, subject to production of a Police Clearance Certificate (Certificate of Good Conduct)
  3. 3.Costs of the suit awarded to the applicant, assessed at Kshs. 150,000

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 23, 27, 47, 50, 232, 236
  • Fair Administrative Actions ActSections 4(1),(2),(3)
  • Employment ActSection 45(2)
  • Criminal Procedure CodeSection 202
  • Civil Procedure RulesOrder 53 Rules 1 & 2
  • ELRC Procedure RulesRule 28(3)

Cases cited (6)

  • Communications Commission Authority of Kenya & 5 others v Royal Media Services & 5 others
  • Kingdom Kenya Limited v the District Land Registrar of Narok & 15 others
    [2018] eKLR
  • Kenfreight (EA) Limited v Benson K. Nguti
    [2016] eKLR
  • John Atelu Omilia & another v Attorney General & 4 others
    [2017] eKLR
  • Anthony Murimi Waigwe v Attorney General & 4 others
    [2020] eKLR
  • Edward Akong'o Oyugi & 2 others v Attorney General
    [2019] eKLR
Jurisdiction invoked
Orders of certiorari, prohibition and mandamus under Order 53 Rules 1 & 2 of the Civil Procedure Rules (leave granted by the Court on 20.2.2020)

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 Principal Secretary State Department for Correction Services & 4 others [2021] KEELRC 663 (KLR)", Case Analysis (2021). Judicial Review Motion dated 4.3.2020 (leave granted 20.2.2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/663/eng@2021-10-22

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