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ELRCDismissedNot stated in the judgment as provided· [2022] KEELRC 43 (KLR)

Awino v Prosecution (Petition E003 of 2021) [2022] KEELRC 43 (KLR)

Employment and Labour Relations Court
26 April 2022
NMNzioKi Wa Makau
3,331 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed a State Counsel's challenge to her ODPP interdiction, ruling it premature because no disciplinary hearing had actually begun.

What this practically means

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Executive summary

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The Petitioner, a State Counsel deployed to the ODPP's Ngong Sub-County Office, was interdicted by the Respondent by letter dated 9th December 2020 (amended 14th December 2020) following media publications concerning Ngong CM Miscellaneous Criminal Application No. E023 of 2020, in which she had handled an application relating to suspects from the Ngong Lands Registry. She challenged the interdiction as unprocedural, unlawful and unconstitutional, alleging breaches of Articles 10, 27, 41, 47, 50, 232 and 234 of the Constitution. She sought orders of prohibition, certiorari and mandamus to quash the interdiction and compel reinstatement, full pay and career advancement, together with declarations of constitutional violation, compensation and damages of Kshs. 10,000,000/-. The Respondent filed no response but submitted that it acted within its statutory powers under the ODPP Act, that the Petitioner remained under investigation, and that the judicial review reliefs sought were not tenable. The Court (Nzioki Wa Makau J) held that the threshold for judicial interposition in disciplinary processes had not been met; that certiorari could not issue to quash the interdiction letter; that mandamus would not issue because the disciplinary process had not commenced and the Petitioner was not out of employment by dint of the interdiction; and that the Petition was premature and unmerited. The Petition was dismissed with no orders as to costs.

Key legal issues

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01

Whether certiorari should issue to quash the interdiction letter

Holding

The Court declined to quash the interdiction letter as the threshold for interposition in the disciplinary process was not met

Reasoning

The Court observed that it has been reluctant to halt disciplinary processes unless the process is demonstrated to be improper, unlawful and manifestly unfair. Since the Respondent had not taken any disciplinary action beyond interdiction and the Petitioner had successfully challenged the interdiction, the Court found no basis for quashing the interdiction letter.

p. 6
02

Whether mandamus should issue to compel reinstatement

Holding

Mandamus was refused because the disciplinary process had not commenced and the Petitioner remained in employment

Reasoning

The Court reasoned that mandamus is not issued for what is yet to be done. Since the interdiction did not terminate employment, and any future disciplinary action could be challenged through appropriate remedies under Section 12 of the Employment and Labour Relations Court Act and Articles 41 and 47 of the Constitution, mandamus would not of right apply.

p. 6
03

Whether the Petition was ripe for determination

Holding

The Petition was held to be premature and unmerited and was dismissed

Reasoning

The Court found that the only action taken was the interdiction, which the Petitioner had successfully challenged, and that no adverse disciplinary action had been taken. As the disciplinary process remained pending before the Advisory Board, the constitutional claims and claims for compensation were premature and unmerited.

p. 6

Legal principles established

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  • Courts are reluctant to intervene in ongoing disciplinary processes unless the process is shown to be improper, unlawful and manifestly unfair
  • Mandamus does not issue in respect of acts yet to be done by an authority
  • Interdiction does not terminate employment; an interdicted officer remains in employment pending investigations

Court orders

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  1. 1.The Petition is dismissed
  2. 2.No orders as to costs
Jurisdiction invoked
Constitution of Kenya, 2010 (Employment and Labour Relations Court jurisdiction under Article 162(2)); remedies under Articles 10, 27, 41, 47, 50, 232 and 234 invoked in the Petition

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, "Awino v Prosecution (Petition E003 of 2021) [2022] KEELRC 43 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/43/eng@2022-04-26

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