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ELRCDismissedJudicial Review Application (notice of motion dated 29.06.2021), Mombasa· [2022] KEELRC 1102 (KLR)

Republic v College & 6 others; Osanjo (Exparte) (Judicial Review Application E004 of 2021) [2022] KEELRC 1102 (KLR)

Employment and Labour Relations Court
1 July 2022
4,606 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The ex-parte applicant, a receptionist at KPA's Bandari College, moved the Court by notice of motion dated 29.06.2021 under Order 53 rule 3 and the Law Reform Act seeking certiorari to quash her interdiction and termination, declarations that her constitutional rights (Articles 10, 19, 20, 21, 22, 25, 27, 28, 41, 43, 47 and 50) were violated, compensation and damages, and costs. She claimed she was victimised for whistle-blowing on fraudulent fee-collection practices, that a fake Rae Girls High School KCSE certificate was planted in her file, and that the disciplinary process was unfair. The 3rd, 4th, 5th and 7th respondents, through the affidavit of Daniel O. Ogutu, maintained she presented a fake KCSE certificate, that KNEC verified it as not genuine, and that due procedure under the HR Manual 2017 and the Employment Act was followed before her dismissal on 04.06.2021. The Court framed three issues. First, it held Rule 7(3) of the ELRC (Procedure) Rules saved the mixed application combining certiorari and constitutional declarations, distinguishing Emfil Limited. Second, it held due procedure was followed: the interdiction letter served as the charge sheet and the applicant was afforded notice and hearing; any belated service was waived or excusable. Third, it found no constitutional violation, held the certiorari prayer time-barred under Order 53 Rule 2, and refused relief as futile since the applicant admitted lacking qualifications and Bandari College no longer existed. The application was dismissed with no orders on costs.

Key legal issues

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01

Whether constitutional declarations and damages may be sought within a judicial review application under Order 53

Holding

Yes - Rule 7(3) ELRC (Procedure) Rules saves such mixed applications where the relief is specifically pleaded and prayed for

Reasoning

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.

p. 7
02

Whether due procedure was followed in the interdiction and summary dismissal

Holding

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

Reasoning

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.

p. 8
03

Whether the applicant's constitutional rights were breached and certiorari should issue

Holding

No - rights were not breached; the certiorari prayer was also time-barred and would be futile

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The ex-parte applicant's notice of motion dated and filed on 29.06.2021 was dismissed with no orders on costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 rule 3; Order 53 Rule 2; Order 53 Rule 4
  • Law Reform ActCap 26, sections 8 and 9
  • Constitution of Kenya, 2010Articles 10, 19, 20, 21, 22, 23, 25, 27, 28, 41, 43, 47, 50, 159
  • Employment and Labour Relations Court (Procedure) RulesRule 7(1), (2), (3); Rule 7 definition of 'suit'
  • Employment Act2007, sections 41, 43, 45, 47(5)
  • KPA HR Manual2017, section K.5(b)(ii); section K 1(c)(xvi); sections K.c (xvi)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rules2012

Cases cited (2)

  • Emfil Limited v Registrar of Titles Mombasa & 2 Others
    [2014] eKLR
  • Republic -Versus- Director General of East African Railways Corporation Ex-Parte George Nume Kaggwa
    [1977] eKLR
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

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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 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.