Republic v Tourism Regulatory Authority; Ogwel (Ex parte Applicant) (Judicial Review E032 of 2022) [2023] KEELRC 998 (KLR)
The bottom line
#The Employment Court struck down a dismissed TRA officer's attempt to use judicial review, confirming state corporations can discipline their own staff without the Public Service Commission.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant fell under the disciplinary control of the PSC under section 65 of the PSC Act 2017
He did not; having been appointed by the TRA following the deployment and fresh recruitment, he was an employee of the Respondent, not a civil servant under the PSC.
The court reasoned that the TRA is a body corporate established under section 4 of the Tourism Act 2011 with power to sue and be sued, and that section 14(5) grants its board power to hire staff. The Applicant applied for, was interviewed for, and accepted appointment as Chief Supply Chain Management Officer of the TRA, with his pensionable service transferred from the Ministry of Tourism. The PSC Act disciplinary regime applies to civil servants in Ministries and State Departments, not to employees of such an autonomous body corporate.
Whether certiorari should issue to quash the termination letter dated 13th October 2022
Certiorari cannot issue; the claim lies elsewhere.
Having found that the Respondent was not subject to the PSC's disciplinary mandate, the court held the Applicant was misguided in imagining his contract was subject to the PSC's dictates. The court also confined itself, in judicial review, to legality and procedural regularity rather than the merits. Since the Respondent had jurisdiction over the disciplinary process, the decision was not made without or in excess of jurisdiction and could not be quashed.
Legal principles established
#- A state corporation established under an Act of Parliament with power to hire its own staff may initiate and conclude a disciplinary process including dismissal without reference to the PSC
- Judicial review is confined to legality and procedural regularity, not the merits of the decision
Court orders
#- 1.The Application for judicial review is struck out
- 2.No order as to costs
- Jurisdiction invoked
- Supervisory judicial review jurisdiction of the Employment and Labour Relations Court under section 8 of the Law Reform Act (Cap 26) and Article 47 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Tourism Regulatory Authority; Ogwel (Ex parte Applicant) (Judicial Review E032 of 2022) [2023] KEELRC 998 (KLR)", Case Analysis (2023). Judicial Review Application (Notice of Motion dated 7th December 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/998/eng@2023-04-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.