Republic v College & 6 others; Osanjo (Exparte) (Judicial Review Application E004 of 2021) [2022] KEELRC 1102 (KLR)
The bottom line
#The Employment Court in Mombasa dismissed a dismissed KPA receptionist's challenge to her sacking, ruling the disciplinary process was fair and her claim came too late.
What this practically means
#Executive summary
#Key legal issues
#Whether constitutional declarations and damages may be sought within a judicial review application under Order 53
Yes - Rule 7(3) ELRC (Procedure) Rules saves such mixed applications where the relief is specifically pleaded and prayed for
Rule 7(1)-(2) prescribes petition and judicial review procedures, but Rule 7(3) permits enforcement of constitutional rights in any suit before the Court. Since 'suit' is defined to include an application for judicial review, the mixed application was saved. The case was distinguished from Emfil Limited because the applicant specifically pleaded and prayed for the declarations there sought.
Whether due procedure was followed in the interdiction and summary dismissal
Yes - the interdiction letter amounted to the formal charge sheet, particulars were set out, and the applicant was heard; sections 41, 43, 45 and 47(5) of the Employment Act were satisfied
The interdiction letter set out the particulars of the alleged gross misconduct (presentation of a forged KCSE certificate) and required a response within 72 hours. The applicant was invited to a disciplinary hearing with the option of a union representative or co-worker. Although the letter may have been received after the 72-hour window lapsed, the applicant responded and participated, waiving the objection.
Whether the applicant's constitutional rights were breached and certiorari should issue
No - rights were not breached; the certiorari prayer was also time-barred and would be futile
The interdiction dated 01.11.2018 was challenged only in June 2021, beyond the 6-month limitation in Order 53 Rule 2. Even if certiorari were available, quashing would be futile: the applicant admitted in cross-examination she held no KCSE certificate and did not fit the Scheme of Service, and Bandari College had ceased to exist following establishment of the Bandari Maritime Academy. The Court applied the principle from Ex-Parte George Nume Kaggwa against granting orders incapable of implementation.
Legal principles established
#- A party is at liberty under Rule 7(3) of the ELRC (Procedure) Rules to seek enforcement of constitutional rights in a suit (including a judicial review application) filed before the Court, provided the relief is specifically pleaded
- The Court should not grant judicial review orders in vanity; an order must be capable of being implemented by those it is directed at
- Where an employee responds to a belatedly served interdiction letter and subjects herself to the disciplinary proceedings, she waives insistence on timely service, or the delay amounts to an excusable procedural error
Court orders
#- 1.The ex-parte applicant's notice of motion dated and filed on 29.06.2021 was dismissed with no orders on costs
- Jurisdiction invoked
- Order 53 rule 3 of the Civil Procedure Rules and the Law Reform Act Cap 26, with constitutional declarations under the Employment and Labour Relations Court (Procedure) Rules Rule 7(3)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v College & 6 others; Osanjo (Exparte) (Judicial Review Application E004 of 2021) [2022] KEELRC 1102 (KLR)", Case Analysis (2022). Judicial Review Application (notice of motion dated 29.06.2021), Mombasa. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1102/eng@2022-07-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.