Gatimbu v University of Embu & another (Judicial Review E001 of 2022) [2023] KEELRC 126 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Prematurity and exhaustion of internal remedies
Suit not premature; no effective internal forum for interlocutory grievance
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.
Denial of copies of documents as violation of fair administrative action and access to information
Limited access with inspection plus production at hearing was fair and justified
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.
Illegality, irrationality and procedural impropriety of the invitation to disciplinary hearing
None established; process lawful and fair
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.
Legal principles established
#- 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
#- 1.The notice of motion dated October 31, 2022 is dismissed
- 2.Costs of the application to the respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.