Republic v Kenya Ports Authority Board Of Directors & 2 others; Public Service Commission (Exparte); Genesis For Human Rights Commission (Applicant) (Judicial Review Application 001 of 2022) [2022] KEELRC 1362 (KLR)
The bottom line
#Kenya's Employment Court allowed a public interest challenge against Kenya Ports Authority to proceed, rejecting arguments that it was filed too late.
What this practically means
#Executive summary
#Key legal issues
#Limitation for certiorari
The certiorari limitation period runs from the decision pleaded as impugned (20.04.2022), so proceedings filed 20.05.2022 are within time.
Parties are bound by their pleadings; the ex-parte applicant designed its case to quash the 1st respondent's resolution of 20.04.2022. Leave was granted on 19.05.2022 and the substantive motion filed 20.05.2022, within six months of 20.04.2022 (expiring about 20.10.2022). The 400th Special Board resolution is duly exhibited and there is no suggestion the prayer targets a fictitious decision.
Validity of the preliminary objection on disputed facts
Both the limitation ground and the substance-versus-process ground fail because they depend on ascertainment of disputed facts.
The parties dispute whether the decision of 20.04.2022 was the operative decision and whether the challenge is procedural or substantive. A preliminary objection premised on facts pleaded by the other side being incorrect does not pass the Mukisa Biscuit test. Whether the 20.04.2022 decision merely implemented the 2021 Instruments is a matter for full hearing.
Scope of judicial review grounds
Judicial review may be founded on illegality, irrationality or procedural impropriety; procedural impropriety is not the exclusive ground, and substance-based grounds may arise in the 'mutating' judicial review jurisdiction.
Relying on Lord Diplock in Council of Civil Service Unions as cited in the ICTAK case, the Court held that whether the applicant has established illegality, irrationality or procedural impropriety can only be determined after full hearing; the inquiry may go beyond procedural impropriety to the substance of administrative action.
Public versus private law character of the dispute
On the face of the pleadings, the dispute concerns the process and legal authority for establishing the human resource instruments under constitutional and statutory provisions, hence a public law matter; the preliminary objection on locus standi on this basis collapses.
The applicant challenges whether the instruments followed applicable procedures and approvals; the interested party asserts constitutional and PSC Act requirements were violated by lack of approval. The root of the dispute is whether the 1st respondent properly invoked constitutional and statutory provisions, not private contractual rights with employees.
Locus standi of the applicant
The applicant, suing in the public interest, has standing: section 12(2) permits any person to sue an employer, and public interest standing requires showing stakes constituting public interest rather than sufficient personal interest.
The applicant is a human rights watch body pleading public interest in how a public body establishes its human resource structure. The Court applied its own holdings in the Mike Sonko and Trusted Society cases on section 12(2) and Article 258 standing, and found no established bar to jurisdiction at the preliminary stage.
Legal principles established
#- A preliminary objection must raise a pure point of law on the assumption that all facts pleaded by the other side are correct; it cannot be raised where facts have to be ascertained.
- Where the impugned decision is that dated in the applicant's own pleading, the six-month certiorari limitation runs from that pleaded decision, and the applicant is not time barred.
- If only one prayer (certiorari) is time barred but the suit includes another surviving remedy (prohibition), a preliminary objection cannot render the entire suit unsustainable.
- Section 12(2) of the Employment and Labour Relations Court Act permits any person to lodge proceedings as long as one of the listed categories of parties (such as an employer) is included.
- A party suing in the public interest need not show sufficient interest but must show stakes constituting public interest; Articles 22 and 258 codify traditional standing while liberalizing it under an objective sieving system.
- Where a jurisdictional issue is not obvious and requires consideration of the disputed issues, it becomes a substantive rather than preliminary issue.
Court orders
#- 1.The notice of preliminary objection is dismissed with costs in the cause
- 2.The parties to take steps towards directions for expeditious hearing and determination of the substantive motion of judicial review
- Jurisdiction invoked
- Article 162(2) of the Constitution as read with the Employment and Labour Relations Court Act, 2011, section 12; judicial review remedy under Order 53 of the Civil Procedure Rules, 2010, the Law Reform Act Cap 26 and the Fair Administrative Action Act, 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Kenya Ports Authority Board Of Directors & 2 others; Public Service Commission (Exparte); Genesis For Human Rights Commission (Applicant) (Judicial Review Application 001 of 2022) [2022] KEELRC 1362 (KLR)", Case Analysis (2022). Judicial Review Application (notice of motion dated 20.05.2022, leave granted 19.05.2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1362/eng@2022-07-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.