Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedJudicial Review Miscellaneous Application (Notice of Motion dated 16th November 2021) – ELRC, Nakuru· [2022] KEELRC 171 (KLR)

Republic v Kericho County Public Service Board & 2 others; Nancy Chebet Kimeto (Interested Party) [2022] KEELRC 171 (KLR)

Employment and Labour Relations Court
28 April 2022
OMONESMUS N MAKAU
3,805 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court ordered Kericho County to appoint the top-scoring teacher, ruling her rejection was discriminatory and irrational.

What this practically means

#

Executive summary

#
This is a first-instance judicial review judgment of the Employment and Labour Relations Court at Nakuru (Onesmus N Makau J) delivered on 28th April 2022. The ex-parte applicant, an ECDE teacher at Siwot ECDE Center in Kericho County since 2018, applied by Notice of Motion dated 16th November 2021 for orders of certiorari, prohibition and mandamus after being denied an appointment letter despite emerging top candidate (65.5 points) in an interview held on 20th January 2021, while the 3rd respondent who scored 62.5 was preferred. She alleged discrimination on the basis of political alignment, citing interference by the interested party, and challenged the respondents' failure to address her complaint. The respondents denied the allegations and contended that no appointment letters had been issued as the recruitment for Siwot ECDE Center had been suspended owing to canvassing. The court framed three issues: whether administrative decisions were made against the applicant, whether they warranted judicial review, and whether the reliefs should issue. It found two decisions against the applicant - the decision not to appoint her like other top candidates, and the suspension of the appointment process - and held them illegal, irrational, unreasonable and discriminatory, contrary to Section 5(2) of the Employment Act and Article 10 of the Constitution. Applying the Pastoli criteria of illegality, irrationality and procedural impropriety, the court granted certiorari quashing both decisions, prohibition against employing the 3rd respondent, and mandamus compelling the respondents to issue the applicant an appointment letter forthwith, with costs and interest at court rates. No appointment of the 3rd respondent was found to exist to quash. The judgment was delivered online pursuant to Covid-19 directions.

Key legal issues

#
01

Whether administrative decisions were made against the applicant

Holding

Two decisions were made: the decision not to appoint her despite being top candidate, and the decision to suspend the appointment process for Siwot ECDE Center citing canvassing.

Reasoning

The court found the score sheet showing the applicant scored 65.5 against the 3rd respondent's 62.5 undisputed and treated it as authentic. The respondents did not rebut that top candidates for other ECDE centers were appointed, only the process for Siwot was suspended. However, no decision appointing the 3rd respondent existed, so certiorari against that claimed appointment could not issue.

p. 5
02

Whether the decisions warrant judicial review

Holding

The decisions were illegal, irrational, unreasonable and discriminatory, and therefore warranted judicial review.

Reasoning

The applicant won an unchallenged interview; other top candidates were appointed while her appointment was suspended for unspecified 'canvassing'. The court held the suspension unfair, unreasonable and contrary to Section 5(2) of the Employment Act and constitutional principles of good governance and non-discrimination under Article 10.

p. 5
03

Whether the reliefs of certiorari, prohibition and mandamus should issue

Holding

Certiorari issued against the non-appointment and suspension decisions; prohibition issued against appointing the 3rd respondent; mandamus commanded issuance of an appointment letter to the applicant.

Reasoning

Having found the decisions merited review, the court entered judgment for the applicant, quashing the impugned decisions, prohibiting the appointment of the 3rd respondent, and compelling the respondents to appoint the applicant as the top candidate, with costs and interest at court rates.

p. 6

Legal principles established

#
  • An applicant for judicial review must show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety.
  • An employer must promote equal opportunity in employment and eliminate discrimination in employment policy or practice.

Court orders

#
  1. 1.Order of certiorari quashing the decision of the 1st respondent not to issue the applicant with an appointment letter as the top candidate in the interview made on 20th January 2021 for Siwot ECDE Center as it did to the other top candidates in various ECDE Centers.
  2. 2.Order of certiorari quashing the decision of the 1st respondent to suspend the appointment process for Siwot ECDE Center.
  3. 3.Prohibitory order prohibiting the 1st respondent from appointing or contemplating to employ the 3rd respondent as the ECDE teacher at Siwot Center, a feeder school of Kabusienduk Primary School in Kericho.
  4. 4.Order of mandamus compelling the 1st and 2nd respondents to issue an appointment letter to the applicant forthwith as the ECDE Teacher Siwot Center, feeder school of Kabusienduk Primary School Kericho County.
  5. 5.The applicant is granted costs and interest at court rates.

Authorities

#

Legislation

  • Constitution of KenyaArticle 10(1) and 10(2) – national values and principles of governance, non-discrimination
  • Constitution of KenyaArticle 27 – equality and freedom from discrimination
  • Employment ActSection 5(2) – equal opportunity in employment
  • ELRC (Procedure) RulesRule 28(3) – delivery of judgments in open court

Cases cited (5)

  • R v Law Society Disciplinary Tribunal & Another, Exparte Muema Kitulu
    (2018) eKLR
  • R v Commission on Administrative Justice Exparte Stephen Gathuita Mwangi
    (2017) eKLR
  • Republic v Tongareri Land Disputes Tribunal comprising Basil Mukosi Makokha & 3 others
    (2008) eKLR
  • Pastoli v Kabale District Local Government Council & Others
    (2008) E.A. 300
  • Al-Mehidswi v Secretary of State for the Housing Department
    (1990) AC 876
Jurisdiction invoked
Judicial review supervisory jurisdiction over administrative action (orders of certiorari, mandamus and prohibition) under leave granted on 5th November 2021

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Republic v Kericho County Public Service Board & 2 others; Nancy Chebet Kimeto (Interested Party) [2022] KEELRC 171 (KLR)", Case Analysis (2022). Judicial Review Miscellaneous Application (Notice of Motion dated 16th November 2021) – ELRC, Nakuru. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/171/eng@2022-04-28

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