Kimathi v Kenya National Trading Corporation (Judicial Review Application E011 of 2023) [2024] KEELRC 813 (KLR)
The bottom line
#A Kenyan court quashed an employee's dismissal and ordered her reinstatement because the employer ignored its own HR manual and denied her a fair hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the High Court has jurisdiction to entertain a judicial review application arising from termination of private employment
Jurisdiction was properly invoked; the constitutionalized framework of Article 47 and the Fair Administrative Action Act extends judicial review to administrative actions affecting legal rights even in the private law space.
The court held that after the 2010 Constitution, the traditional common-law distinction between public and private power has been supplanted. The Fair Administrative Action Act defines administrative action to include any act, omission or decision affecting a person's legal rights or interests. It is the subject and implications of the decision, not the nature of the body, that determines the court's intervention. Employer-employee disputes revolving around administrative action are properly litigated by judicial review.
Whether the termination of the Applicant's employment was procedurally fair
The termination was procedurally improper: the Applicant was not notified, heard or given an opportunity to make representations as required by section 41 of the Employment Act, section 4(3) of the Fair Administrative Action Act and Article 47 of the Constitution.
The Respondent claimed the Applicant attended and was heard at the 20th February 2023 meeting, but the minutes showed she did not attend and was not invited. The court found the Respondent's deponent presented untrue facts. Termination on grounds of poor performance required adherence to section 8.11.1 of the manual's appraisal process, including a meeting, preliminary report and signed evaluation form, none of which occurred.
Whether the decision to terminate was unreasonable and irrational
The decision was unreasonable and irrational: the Applicant was treated as if on probation, and dismissal for poor performance in Finance was unsupported by an appraisal in which she scored 85.5% in that function, her highest score.
The manual allowed termination on a single appraisal only for probationary employees, which the Applicant was not. The Board Paper and minutes referred to a six-month probation that did not exist under the manual. The court found the claimed poor performance in Finance irreconcilable with the appraisal scores and concluded the dismissal verged on absurdity and was taken in haste and bad faith.
Legal principles established
#- Post-2010 Constitution, judicial review is no longer confined to public law; administrative action affecting an individual's rights is reviewable regardless of whether the decision-maker is a public body, and employer-employee disputes revolving around an administrative action can be litigated under judicial review.
- An employer is bound by its own Human Resource Policy and Procedures Manual, and termination in breach of the manual's appraisal and probation provisions is procedurally improper.
- Termination of a non-probationary contract employee on the basis of a single mid-year appraisal, contrary to the manual's requirement of quarterly appraisals summed up at year end, is a grave procedural impropriety.
Court orders
#- 1.An Order of certiorari quashing the Respondent's decision to dismiss the Applicant from employment as General Manager, Corporate Services, as expressed in the termination letter dated 22nd February 2023.
- 2.An Order of Prohibition restraining the Respondent from advertising, shortlisting, conducting interviews and selecting, issuing a letter of offer and appointing any other person in the place of the Applicant as General Manager Corporate Services.
- 3.An Order of mandamus compelling the Respondent to immediately reinstate the Applicant to her position as General Manager, Corporate Services, without loss of salary and benefits.
- 4.The Respondent to bear the costs of the Application.
- Jurisdiction invoked
- Articles 23 and 47 of the Constitution; Section 9 of the Law Reform Act (Cap 26); Order 53 Rule 1(2) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimathi v Kenya National Trading Corporation (Judicial Review Application E011 of 2023) [2024] KEELRC 813 (KLR)", Case Analysis (2024). Judicial Review Notice of Motion Application dated 6th March 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/813/eng@2024-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.