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ELRCAllowedJudicial Review Notice of Motion Application dated 6th March 2023· [2024] KEELRC 813 (KLR)

Kimathi v Kenya National Trading Corporation (Judicial Review Application E011 of 2023) [2024] KEELRC 813 (KLR)

Employment and Labour Relations Court (High Court)
28 March 2024
10,007 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Exparte Applicant, formerly General Manager, Corporate Services at Kenya National Trading Corporation Ltd, moved the court by Notice of Motion dated 6th March 2023 seeking certiorari to quash her termination dated 22nd February 2023, prohibition against filling her position, and mandamus compelling payment of benefits or, alternatively, payment for the remainder of her five-year fixed-term contract. She contended that her contract excluded probation, that quarterly appraisals were required in the first year, that a hurried February 2023 appraisal was conducted in breach of the Respondent's Human Resource Policy and Procedures Manual, and that she was neither notified nor heard before termination. The Respondent countered that the appraisal period had been mutually varied to six months, that her performance in Finance was unsatisfactory, that judicial review was misconceived as employer-employee disputes are private law matters, and that she had failed to exhaust internal appeal mechanisms. The court framed two issues: jurisdiction and entitlement to relief. It held that following the 2010 Constitution and the Fair Administrative Action Act, judicial review extends to administrative action affecting legal rights even in the private law space, so its jurisdiction was properly invoked. On the merits, it found the minutes showed the Applicant was neither invited to nor heard at the 20th February 2023 meeting; that the Respondent treated her as a probationer contrary to its own manual; that termination on a single mid-year appraisal was procedurally improper; and that dismissal for poor performance was irrational given her 85.5% score in Finance. Allowing the motion, the court quashed the termination, prohibited the filling of the position, ordered immediate reinstatement without loss of salary and benefits, and awarded the Applicant costs.

Key legal issues

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01

Whether the High Court has jurisdiction to entertain a judicial review application arising from termination of private employment

Holding

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.

Reasoning

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.

p. 15
02

Whether the termination of the Applicant's employment was procedurally fair

Holding

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.

Reasoning

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.

p. 16
03

Whether the decision to terminate was unreasonable and irrational

Holding

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.

Reasoning

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.

p. 19

Legal principles established

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  • 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

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  1. 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. 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. 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. 4.The Respondent to bear the costs of the Application.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 23, 47, 50, 159(2)(d), 162(2)(a), 165(5) and (6), 258(1), 48, 10(2)(c)
  • Fair Administrative Action ActSections 2, 4(3), 6, 7, 7(2), 11
  • Law Reform Act Cap 26 Laws of KenyaSection 9
  • Civil Procedure RulesOrder 53 Rule 1(2); Order 21 Rule 1
  • Employment ActSection 41
  • Public Service Human Resource Policy and Procedures Manual (2016)Sections 18(ii)/D18(ii) and 20/D20

Cases cited (21)

  • Abdikadir Suleiman v County Government of Isiolo and Another
    [2015] eKLR
  • Republic v Governor Nyamira County & 2 others Ex parte Clive Nyaaga Ogwora
    [2022] eKLR
  • Republic v Public Procurement Administrative Review Board & 2 others Exparte Rongo University
    [2018] eKLR
  • Suchan Investment Limited v Ministry of National Heritage & Culture & 3 Others
    [2016] KLR
  • George Maina Kamau v The County Assembly of Murang'a and 2 others
    [2016] eKLR
  • Associated Provincial Picture Houses Limited v Wednesbury Corporation
    (1947) 2 ALL ER 680
  • Oyatsi v Judicial Service Commission
    (Petition E111 of 2021) [2022] KEELRC 3 (KLR)
  • Staff, Disciplinary Committee of Maseno University & 2 others v Ochonga Okello
    [2012] eKLR
  • Republic v Mwangi S. Kimenyi Ex parte Kenya Institute for Public Policy and Research Analysis (KIPPRA)
    [2013] eKLR
  • Chief Constable of North Wales Police v Evans
    (1982) 1 WLR 1155
  • Commissioner of Lands v Kunste Hotel Limited
    1995-1998 1 EA 1
  • Eric V J Makokha & 4 Others v Lawrence Sagini & 2 Others
    Civil Application No. Nai. 20 of 1994
  • Speaker of National Assembly v Karume
    [1992] KLR 21
  • Breen v AEU
    [1971] QB 175
  • R v Jockey Club exparte RAM Recourses Ltd
    [1993] 2 All ER 225
  • Council of Civil Service Unions v Minister for the Civil Service
  • Bito Star Fishing (Pty) Ltd v Minister of Environment Affairs and Others
    2004 (4) SA 490 CC
  • Chief Constable of Sussex, exparte International Trader's Ferry Ltd
    [1995] 1 ALL ER (HL) 157
  • Johnson v Unisys Ltd
    [2003] 1 AC 518
  • Martin Nyaga Wambora v Speaker of the Senate
    [2014] eKLR
  • Ethics and Anti-Corruption Commission and Others v Henry Morara Angwenyi And Others
    Civil Appeal No. 229 of 2017
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.