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ELRCDismissedJudicial Review application, Notice of Motion dated October 31, 2022· [2023] KEELRC 126 (KLR)

Gatimbu v University of Embu & another (Judicial Review E001 of 2022) [2023] KEELRC 126 (KLR)

Employment and Labour Relations Court
26 January 2023
3,768 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed a university lecturer's disciplinary hearing to proceed, ruling that employers only need to let employees inspect evidence, not hand over copies.

What this practically means

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Executive summary

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The ex parte applicant, a lecturer at the 1st respondent university, faced disciplinary proceedings for alleged negligent examination marking. After a show cause letter dated May 24, 2022 she demanded certified copies of the documents relied upon; she was granted limited access to inspect the documents on the ground that they were restricted under university information-security policies. She refused inspection without copies and was invited to a disciplinary hearing by letter dated September 15, 2022. She moved the court, by notice of motion dated October 31, 2022, for certiorari to quash the decision to institute the disciplinary process, prohibition against its continuation, and mandamus compelling supply of certified copies of all documents and witness statements. The respondents argued the invitation letter was not a reviewable decision, that the suit was premature for breaching exhaustion under section 9 of the Fair Administrative Actions Act, and that the applicant had been accorded fair access. The court, Makau J, first held the suit was not premature since the internal appeal mechanism under clause 12.13 of the HR Manual covered only final disciplinary action, not interlocutory decisions. On the merits, the court held access to information is not absolute, that the cardinal right is inspection of documents in the form held, and that limited access with an undertaking to avail the documents at the hearing satisfied section 4(3) of the FAA Act. No illegality, irrationality or procedural impropriety was proved, and the notice of motion was dismissed with costs to the respondents.

Key legal issues

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01

Prematurity and exhaustion of internal remedies

Holding

Suit not premature; no effective internal forum for interlocutory grievance

Reasoning

The court held courts may intervene in internal disciplinary processes to ensure legality and fairness without stopping them. The internal appeal clause 12.13 of the HR Manual applies to final disciplinary action (warning, demotion, dismissal), not interlocutory decisions such as an invitation to a hearing. Since no disciplinary action had been taken, there was no internal forum, so the exhaustion doctrine under section 9 FAA Act was not offended.

p. 5
02

Denial of copies of documents as violation of fair administrative action and access to information

Holding

Limited access with inspection plus production at hearing was fair and justified

Reasoning

Access to information under article 35 is not absolute and may be limited under article 24 and section 6(1) of the AI Act. Section 11(3) requires inspection in the form held unless copying is practicable. University policies classified the documents as restricted. Given the undertaking to avail documents at the hearing, limited access satisfied section 4(3) of the FAA Act and no violation was proved on a balance of probability.

p. 7
03

Illegality, irrationality and procedural impropriety of the invitation to disciplinary hearing

Holding

None established; process lawful and fair

Reasoning

Applying the Pastoli/Muthama standard, the applicant had to prove illegality, irrationality or procedural impropriety. The court found respondents acted fairly by entertaining her information request and adequately explaining why copies could not be freely given. The decision-making process was not shown to be tainted, so the judicial review orders of certiorari, prohibition and mandamus could not issue.

p. 7

Legal principles established

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  • A court may intervene in an internal disciplinary process where it is marred by irregularities, but only to put the process right, not to stop it altogether
  • An internal appeal mechanism relating only to final disciplinary action does not constitute an effective alternative remedy for interlocutory decisions
  • Access to information is a limited right; the cardinal right is to inspect documents in the form held, and the right to copies may be restricted

Court orders

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  1. 1.The notice of motion dated October 31, 2022 is dismissed
  2. 2.Costs of the application to the respondents

Authorities

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Legislation

  • Fair Administrative Actions Actsections 2, 4(3), 7, 9(2) and (3)
  • Access to Information Actsections 4, 6(1), 11(3)
  • Constitution of Kenyaarticles 24, 25, 35(1), 47, 50
  • Employment Act
  • Universities Actsection 35
  • University Policy and Guidelines on Information Security Management / Directorate of University Examinations Information Security Management System Guidelinesclauses 4.0, 4.1.1, 4.10
  • Respondents' HR Policies and Procedures Manualclauses 12, 12.6.1, 12.8.1, 12.13
  • ELRC Procedure RulesRule 28(3)

Cases cited (7)

  • Republic v Secretary of the Firearm Licencing Board & 2 Others Exparte Senator Johnson Muthama
    [2018] eKLR
  • Rebecca Ann Maina & 2 Others v Jomo Kenyatta University of Agriculture and Technology
    [2014] eKLR
  • Gladys Shollei v Judicial Service Commission & Another
    [2022] KESC 5 (KLR)
  • Muhamed Ali Baadi & Others v The Attorney General and 11 others
    [2018] eKLR
  • Anne Wambui Kamuiru v Kenya Airways Ltd
    [2016] eKLR
  • Kiama Wangai v Egerton University
    [2015] eKLR
  • Pastoli v Kabale District Local Government Council & Others
    [2008] 2 EA 300
Jurisdiction invoked
Judicial review jurisdiction under section 7 of the Fair Administrative Actions Act; articles 47, 35(1) and 50 of the Constitution invoked

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, "Gatimbu v University of Embu & another (Judicial Review E001 of 2022) [2023] KEELRC 126 (KLR)", Case Analysis (2023). Judicial Review application, Notice of Motion dated October 31, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/126/eng@2023-01-26

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