Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedPetition dated April 19, 2023 (number not stated in judgment)· [2023] KEELRC 3387 (KLR)

Ndiege v Judicial Service Commission (Petition E088 of 2023) [2023] KEELRC 3387 (KLR)

Employment and Labour Relations Court
20 December 2023
BOByram Ongaya
1,992 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The petitioner, formerly employed by the respondent as an Executive Officer II from April 29, 2004, was served with a charge letter and suspension on August 16, 2016 over absence from lawful duties without permission. After disciplinary hearings before the Human Resource Management Committee between 2018, he was summarily dismissed by letter dated March 27, 2019 pursuant to paragraph 21 Part IV of the 3rd Schedule of the Judicial Service Act, 2011. His application for review, lodged on September 18, 2019, was disallowed by letter dated July 1, 2020 on the ground that no new material facts had been advanced. He petitioned the Court seeking declarations of violation of Articles 47 and 50 of the Constitution, reinstatement with back salary, or alternatively general, aggravated and exemplary damages, and twelve months' salary for unlawful termination. The respondent filed a replying affidavit sworn by the Chief Registrar, Anne Amadi, contending that the dismissal was for a valid and substantive reason, that fair procedure was followed including the petitioner's attendance and cross-examination at the hearing of June 7, 2018, and that an oral review hearing was not mandatory. It also filed a notice of preliminary objection raising constitutional avoidance, the Anarita Karimi Njeru criteria, time bar, inordinate delay and res judicata. The Court upheld the preliminary objection, finding the challenge to the dismissal time barred under section 90 of the Employment Act and res judicata given the earlier suit, ELRC Cause 793 of 2019. It further found no entitlement to an oral review hearing and that the petition attempted to circumvent limitation and res judicata. The petition was dismissed with each party bearing own costs.

Key legal issues

#
01

Limitation of actions in employment claims

Holding

The claim challenging the dismissal of March 27, 2019 was filed out of the three-year limitation period in section 90 of the Employment Act with no good reason shown for the delay

Reasoning

The petitioner knew of his dismissal on March 27, 2019. As at filing of the petition, the three years of limitation had lapsed. No good reason was shown for the belated challenge, and even if the review decision were set aside, the unchallenged initial dismissal would remain in place.

p. 4
02

Res judicata

Holding

The petition was res judicata because the petitioner failed to urge the unfairness and rights violations in the earlier suit, ELRC Cause 793 of 2019, filed on November 14, 2019 while his administrative review was pending

Reasoning

Nothing prevented the claimant from urging the unfairness and violation of rights, if any, in the earlier case while his administrative appeal or review was pending. Having failed to do so, he could not raise the same grievances in the instant petition, and the petition was also filed to avoid available reliefs under the Employment Act.

p. 4
03

Constitutional avoidance and fair administrative action

Holding

The grievance that the petitioner was not orally heard on his appeal/review was unjustified because no oral hearing was prescribed, so Articles 47 and 50 were not violated, and the constitutional route was improper where Employment Act remedies existed

Reasoning

The respondent's Manual and the Judicial Service Act do not make it mandatory to consider a review in the presence of the employee. The court applied constitutional avoidance and upheld the preliminary objection, dismissing the petition with each party bearing own costs.

p. 4

Legal principles established

#
  • A constitutional petition cannot be used to circumvent limitation and res judicata fetters attaching to remedies available under the Employment Act
  • An administrative appeal or review need not be conducted by oral hearing unless such a hearing is agreed upon or prescribed by regulation or policy

Court orders

#
  1. 1.The notice of preliminary objection is upheld as found in the judgment
  2. 2.The petition is dismissed
  3. 3.Each party to bear own costs of the notice of the preliminary objection and the petition

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 50
  • Fair Administrative Action ActSection 4
  • Employment Act, 2007Sections 41, 43, 45 and 90
  • Judicial Service Act, 2011Paragraph 21 Part IV of the 3rd Schedule

Cases cited (1)

  • Anarita Karimi Njeru v Republic
    (1979) eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court; petition premised on Articles 47 and 50 of the Constitution of Kenya, 2010 as read with the Fair Administrative Action Act and the Employment Act, 2007

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ndiege v Judicial Service Commission (Petition E088 of 2023) [2023] KEELRC 3387 (KLR)", Case Analysis (2023). Petition dated April 19, 2023 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3387/eng@2023-12-20

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