Republic v Ag Director, Bandari Maritime Academy & 2 others; Ogogoh (Exparte Applicant); National Council for persons with Disabilities & another (Interested Parties) (Judicial Review Application E001 of 2023) [2023] KEELRC 2522 (KLR)
The bottom line
#The Employment Court in Mombasa struck out a judicial review case against Bandari College because it was filed too late and in the wrong way, and ordered the applicant to pay Ksh. 50,000 in costs.
What this practically means
#Executive summary
#Key legal issues
#Time limitation for applications for certiorari
The application for certiorari was time-barred as it was brought more than 6 months after the decision (advertisement closing 7 November 2022) and leave sought only on 27 June 2023
Order 53 rule 2 and Section 9(3) of the Law Reform Act require an application for certiorari within 6 months of the impugned decision, running from the date the decision issued. The advertisement closed on 7 November 2022 and leave was sought on 27 June 2023, well beyond 6 months. The time limits exist to secure the subject matter before it changes or is implemented, and non-compliance is fatal.
Filing the substantive motion outside the 21 days granted in leave
Failure to file the substantive motion within 21 days of leave, without seeking extension, invalidated the leave and the motion
Leave was granted on 27 June 2023 with 21 days to file and serve, expiring 17 July 2023. The motion was filed 20 July 2023, three days late, without reverting to court for extension. This non-compliance with Order 53 rule 3(1) invalidated the leave and rendered the motion invalid.
Mootness - application overtaken by events
The application was overtaken by events as the seconded KPA staff had all opted to remain or been absorbed, and courts should not issue orders in vain
The respondents showed the KPA seconded employees were given a choice whether to continue serving the 3rd respondent and all but one opted to remain, with that one absorbed. The ex parte applicant did not attend or file submissions to show the matter was still alive. Following the Makokha principle, equity does nothing in vain and orders should not issue in vain.
Legal principles established
#- A party choosing judicial review in employment and labour matters must strictly adhere to Section 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules
- The 6-month limitation for certiorari runs from the date the challenged decision issued
- Equity will not grant a remedy where the order would be in vain
Court orders
#- 1.The respondents' preliminary objections dated 1st September 2023 were found with merit
- 2.The ex parte applicant's application was found to be an abuse of court process and dismissed
- 3.Costs of Ksh. 50,000 awarded to the respondents
- 4.The 3rd interested party shall bear its own costs
- Jurisdiction invoked
- Judicial review under Section 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules, per Rule 7(2) of the Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Ag Director, Bandari Maritime Academy & 2 others; Ogogoh (Exparte Applicant); National Council for persons with Disabilities & another (Interested Parties) (Judicial Review Application E001 of 2023) [2023] KEELRC 2522 (KLR)", Case Analysis (2023). Not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2522/eng@2023-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.