Republic v Lake Basin Development Authority; Chere (Exparte Applicant) (Judicial Review E045 of 2023) [2024] KEELRC 1913 (KLR)
The bottom line
#Kenya's Employment Court refused to reinstate a dismissed Lake Basin Mall employee via judicial review, ruling private employment disputes belong in ordinary employment proceedings.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent's decision to summarily dismiss the Ex-parte Applicant was tainted with illegality, irrationality or procedural impropriety warranting certiorari
The dismissal was not proved to be tainted with any of the three grounds; the employer's prerogative to discipline once the Board was constituted is not amenable to review interference.
The court applied the Pastoli test of illegality, irrationality and procedural impropriety, and the Municipal Council of Mombasa principles confining judicial review to process rather than merits. The Applicant was initially reinstated only because the Respondent's Board was not in place; once the Board was fully constituted it exercised its prerogative to dismiss, which the court cannot interfere with. Judicial review remedies cannot be used to dictate to a statutory body how to implement its discretion.
Whether judicial review remedies (certiorari and mandamus) are available to enforce reinstatement in an employment contractual relationship
No - the Applicant's relationship with the Respondent was governed by an employment contract in the purview of private law, and judicial review lies only for public law rights.
The court endorsed the Respondent's submission that judicial review remedies are unavailable in a private contractual relationship, citing Makupa Transit Shade and the English authorities in Shadrack Kibichi Bundotich distinguishing statutory public law rights from rights arising solely from a breach of a contract of employment. Dismissal of employees falls squarely within the Employment Act, which adequately caters for summary dismissal and reinstatement.
Whether the Applicant was entitled to costs against the Respondent's Board members for disregarding prior court orders
No - the motion was not fashioned as a contempt application, and a fresh suit to enforce orders in other suits is an abuse of process.
The court noted the Applicant sought to have the Respondent condemned to pay costs for disregarding orders in prior judicial review suits, but observed that enforcing orders granted in other suits through a fresh suit is an abuse of process, and since the motion was not framed as contempt, compliance with the stay orders did not arise for determination here.
Legal principles established
#- A judicial review court is concerned only with the process leading to a decision, not with its merits, and must not act as a court of appeal over the decision maker.
- To succeed in judicial review an applicant must show the decision is tainted with illegality, irrationality or procedural impropriety.
- An employer's prerogative to discipline and dismiss an employee, once exercised by a fully constituted board, is not subject to judicial review interference absent illegality, irrationality or procedural impropriety.
- Quashing of a dismissal decision does not bar an employer from instituting subsequent disciplinary proceedings.
- A fresh suit cannot be used to enforce orders granted in other suits; doing so is an abuse of the process of the court.
Court orders
#- 1.The Notice of Motion dated 26th February, 2024 seeking orders of certiorari and mandamus is dismissed
- 2.Costs of the application awarded to the Respondent
- Jurisdiction invoked
- Judicial review jurisdiction of the Employment and Labour Relations Court under leave granted on 7th February, 2024; judicial review as a constitutional right (Article 47 fair administrative action as discussed)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Lake Basin Development Authority; Chere (Exparte Applicant) (Judicial Review E045 of 2023) [2024] KEELRC 1913 (KLR)", Case Analysis (2024). Kisumu ELRC Judicial Review No. E045 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1913/eng@2024-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.