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ELRCDismissedJudicial Review Application (Notice of Motion dated 08.12.2021)· [2024] KEELRC 929 (KLR)

Republic v Ministry of Water, Sanitation and Irrigation & 2 others; Quadrant Engineering Consultants Limited & 2 others (Interested Parties); Gathii (Exparte) (Judicial Review 037 of 2021) [2024] KEELRC 929 (KLR)

Employment and Labour Relations Court
17 April 2024
3,323 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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The Employment and Labour Relations Court dismissed a consultant's judicial review bid, ruling that purely contractual termination disputes belong in an ordinary suit, not judicial review.

What this practically means

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Executive summary

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The ex parte applicant, engaged as a Monitoring and Evaluation Specialist on the World Bank/KfW-funded Kenya Water Security and Climate Resilience Project through the 1st interested party, moved the court by notice of motion dated 08.12.2021 seeking certiorari to quash the decision requiring termination of his employment, mandamus to reverse it, prohibitory orders against effecting the termination, and in the alternative mandamus compelling payment for the remaining 28 months of his contract for non-compliance with orders issued by Hon. Lady Justice Maureen Onyango on 2nd December 2021. He alleged the termination by letter dated 31st October 2021 was abrupt, unprocedural, tainted by racial and ethnic discrimination and personal vendetta, and breached the Employment Act and the contract between the Government and the 2nd interested party. Only the 1st interested party responded, contending the applicant was a freelance consultant whose contract was terminated per clause 9.2 upon the client's dissatisfaction with his performance, and that the court lacked jurisdiction given the arbitration clause in clause 10.0 of the agreement. The court dismissed the application, holding that the relationship was purely contractual without statutory or constitutional underpinning; judicial review was the most unsuited proceeding to evaluate the merits of the termination and the layers of contracts involved, and Order 53 remedies were unavailable. The court found a valid reason for termination under section 45 of the Employment Act, held that compliance with stay orders belonged in contempt proceedings, and ordered each party to bear own costs.

Key legal issues

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01

Suitability of judicial review for contractual employment disputes

Holding

The judicial review application failed because the work relationship and impugned decisions were purely contractual without statutory or constitutional underpinning; judicial review was the most unsuited proceeding to evaluate the merits of the termination.

Reasoning

The court held that the applicant was attempting to unsettle the merits of termination of a contractual relationship involving layers of contracts and sub-contracts between the Government, the ISC and the sub-consultant. Merits evaluation of such contractual termination belongs to an ordinary suit, not to certiorari, mandamus or prohibition under Order 53.

p. 8
02

Availability of Order 53 remedies

Holding

It was not shown how judicial review remedies under Order 53 of the Civil Procedure Rules would be available on purely contractual issues.

Reasoning

The court reasoned that whether the relationship was consultancy or employment was itself not a matter for judicial review proceedings. Since the issues were purely contractual and no statutory duty or public law element was established, the remedies sought could not issue and the application had to collapse.

p. 8
03

Validity of the reason for termination

Holding

The 1st interested party had a valid reason for termination - the client's dissatisfaction with the applicant's performance - which related to its operational requirements and was fair under section 45 of the Employment Act.

Reasoning

The court accepted the 1st interested party's showing that respondents were dissatisfied with the applicant's performance and that the employer was entitled to comply with the client's demands under a binding contract. Whether the applicant actually performed satisfactorily did not diminish the validity of the operational reason for termination.

p. 8

Legal principles established

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  • Judicial review remedies are unavailable to unsettle the merits of termination of a purely contractual work relationship without statutory or constitutional underpinning; such disputes belong to an ordinary suit.
  • A termination grounded on client dissatisfaction relates to the employer's operational requirements and constitutes a valid reason under section 45 of the Employment Act.
  • Alleged non-compliance with court orders is a matter for contempt proceedings, not judicial review.

Court orders

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  1. 1.The notice of motion dated 08.12.2021 is dismissed
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Constitution of KenyaArticles 22, 23, 27, 28, 41, 47, 50, 75
  • Employment ActSections 37, 43, 45, 46
  • Fair Administrative Action Act, No. 4 of 2015Sections 7, 8, 9
  • High Court Practice RulesRules 2(2)(a), 3(1), 3(2)
  • Civil Procedure Rules, 2010Order 53
Jurisdiction invoked
Articles 22, 23, 27, 28, 41, 47, 50 and 75 of the Constitution of Kenya; Sections 7, 8 and 9 of the Fair Administrative Action Act; Order 53 of the Civil Procedure Rules, 2010

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, "Republic v Ministry of Water, Sanitation and Irrigation & 2 others; Quadrant Engineering Consultants Limited & 2 others (Interested Parties); Gathii (Exparte) (Judicial Review 037 of 2021) [2024] KEELRC 929 (KLR)", Case Analysis (2024). Judicial Review Application (Notice of Motion dated 08.12.2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/929/eng@2024-04-17

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