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ELRCDismissedJudicial Review Application dated 27th March 2023· [2024] KEELRC 2132 (KLR)

Republic v Odege (Secretary General, Union of Kenya Civil Servants) & 3 others; Odhiambo (Exparte) (Judicial Review E013 of 2023) [2024] KEELRC 2132 (KLR)

Employment and Labour Relations Court
31 July 2024
AMAnna Ngibuini Mwaure
4,857 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a union official's attempt to overturn his suspension, ruling he went to court too early instead of finishing the union's internal appeals first.

What this practically means

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Executive summary

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The Ex-parte Applicant, the suspended 1st Deputy Secretary General of a union, sought leave and judicial review orders of certiorari to quash his suspension, the notice to show cause of 1st March 2023, the disciplinary proceedings of 8th March 2023 and an internal memorandum of 9th March 2023, plus prohibition and mandamus compelling reinstatement, and interim orders of stay and injunction. He contended the Secretary General unilaterally and ultra vires issued the notice to show cause, acted as complainant, prosecutor and judge, that the notice lacked particulars and adequate time contrary to the union constitution, Article 47 of the Constitution and the Fair Administrative Action Act, and that the process was tainted by bias. The Respondents maintained the suspension was effected under Article 15(4)(d)(iv) of the union constitution by the National Administrative Council, that the Applicant was read the charges, allowed to defend himself, a vote taken, the decision communicated and an automatic appeal placed before the National Executive Board, which he failed to attend. They also attacked the Applicant's audio recordings as inadmissible under sections 78A and 106B of the Evidence Act. The court, applying authorities on the supervisory nature of judicial review, held the Respondents complied with the union constitution and the Employment Act; it declined to admit the transcript of the recordings and found the Applicant rushed to court before the internal process concluded. The application was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the ex parte Applicant is entitled to the judicial review orders of certiorari, prohibition and mandamus

Holding

The application was dismissed; the Applicant failed to demonstrate illegality, irrationality or procedural impropriety in the disciplinary process

Reasoning

The court found the Respondents issued a notice to show cause listing allegations, took the Applicant through a disciplinary hearing on 8th March 2023, allowed him to defend himself, took a vote, communicated the decision and referred the matter to NEB for hearing. The Applicant failed to appear before NEB and filed the judicial review prematurely, before the internal process concluded. The challenged audio recordings and transcript were inadmissible under sections 78 and 106B of the Evidence Act.

p. 9
02

Whether the Applicant's audio recordings and transcript of the disciplinary hearing were admissible

Holding

The transcript was not admitted for non-compliance with the Evidence Act

Reasoning

The court declined to admit the transcript because it did not comply with sections 78(7) and 106B of the Evidence Act; the Applicant did not prove the phone in the electronic certificate belonged to him and there was no concrete evidence the recordings accurately captured the disciplinary hearing.

p. 9

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision itself.
  • Procedural fairness is a flexible, contextual principle of natural justice with no rigid universal rules.

Court orders

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  1. 1.The judicial review application is dismissed
  2. 2.Each party to meet their own costs of the judicial review application

Authorities

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Legislation

  • Constitution of KenyaArticle 47(2)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Fair Administrative Action ActSection 4
  • Employment Act
  • Evidence ActSections 78, 78A, 106B
  • Civil Procedure RulesOrder 53 Rule 1
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (5)

  • Republic v Director of Immigration Services & 2 others Exparte Olamilekan Gbenga Fasuyi & 2 others
    (2018) eKLR
  • Chief Constable of the North Wales Police v Evans
    (1982) 1 WLR 1155
  • Republic v County Council of Kwale & another Ex-parte Kondo & 57 others
    Mombasa HCMCA No 384 of 1996
  • Judicial Service Commission v Gladys Boss Shollei & another
    [2014] eKLR
  • Ondari Isaac Mageto vs Machakos University
    (2021) eKLR
Jurisdiction invoked
Judicial review jurisdiction under Order 53 Rule 1 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, "Republic v Odege (Secretary General, Union of Kenya Civil Servants) & 3 others; Odhiambo (Exparte) (Judicial Review E013 of 2023) [2024] KEELRC 2132 (KLR)", Case Analysis (2024). Judicial Review Application dated 27th March 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2132/eng@2024-07-31

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