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ELRCDismissedNot stated in judgment· [2025] KEELRC 356 (KLR)

Akolo v Board of Directors, Amatsi Water Services Company Limited & 2 others; Attorney General (Interested Party) (Judicial Review Application E002 of 2024) [2025] KEELRC 356 (KLR)

Employment and Labour Relations Court
13 February 2025
4,448 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A dismissed manager lost his case because he sued the wrong people and used the wrong court process instead of suing his employer directly.

What this practically means

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Executive summary

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The ex-parte applicant, formerly Head of Corporate and Commercial Services of Amatsi Water Services Limited, sought orders of certiorari to quash his dismissal by letter dated 22nd January 2024 and prohibition against its implementation, alleging denial of a fair hearing, breach of the company's human resources policy (seven rather than twenty-one days to respond to a show-cause letter), assault by a board committee member, and a predetermined outcome. The dispute originated from his refusal to surrender company cheque-books as instructed. The respondents, through the Managing Director's affidavit, maintained that he was accorded substantive and procedural fairness: show-cause, suspension, hearings before an ad-hoc committee and the full Board, an appeal and a review, all communicated to him. The court framed four issues and began with whether the proceedings were properly before it. Applying Salomon v Salomon, it held that the company is a separate legal person that must be sued in its own name; the Board of Directors is not a legal entity, so the action was incurably defective. No cause of action lay against the other respondents or the Attorney General, and judicial review is inappropriate for a private employment dispute, which belongs to private law. The court then, for completeness, held that even if the employer had been joined, the disciplinary process and dismissal were fair in substance and procedure, and the applicant's conduct in defying a lawful instruction was 'ridiculous'. The application and entire proceedings were dismissed with no order as to costs. The applicant remains free to pursue criminal charges over the alleged assault.

Key legal issues

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01

Whether the judicial review proceedings were properly before the court

Holding

The proceedings were incurably defective on three fronts: misjoinder of the board of directors as a non-legal entity, no cause of action against the other respondents and interested party, and a private employment dispute brought under public-law remedies

Reasoning

The court held that Amatsi Water Services Ltd is a separate legal personality (Salmon v Salmon) and only the company could sue or be sued over the employment relationship. Judicial review checks excesses of public officers in public duties; a private employment dispute lies in private law for remedies in personam. The board is not a legal entity capable of being sued.

p. 7
02

Whether the dismissal of the applicant was unfair and unlawful

Holding

Even assuming the employer had been joined, the dismissal was fair in substance and procedure; the applicant was given a show-cause letter, hearing, appeal and review

Reasoning

The applicant received and responded to a show-cause letter, attended a disciplinary hearing and presented his defence, never requested witnesses for cross-examination, failed to attend his appeal hearing which was nonetheless determined on his written submissions, and was informed of outcomes at every stage. Natural justice was complied with and his rights were not infringed.

p. 8
03

Whether the applicant was entitled to the reliefs sought

Holding

No relief could be granted because the employer was not a party and the corporate veil was never lifted

Reasoning

Orders of certiorari and prohibition were intended to reinstate the applicant, but they could only issue against the company, which was never joined. The board and individual officers have no capacity to be sued for the company, and no explanation was given for joining the Attorney General in a purely private dispute.

p. 8

Legal principles established

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  • A limited liability company is a legal person that must sue and be sued in its own name; proceedings against its board or officers on its behalf are fatally defective
  • Judicial review is available only to check abuses by public officers and institutions performing public duties, not to resolve private employment disputes
  • A party who fails to request the calling of witnesses for cross-examination cannot later complain of denial of the opportunity

Court orders

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  1. 1.The application and the proceedings herein are dismissed in their entirety
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 3; Order 53
  • Law Reform ActSections 8 & 9; Sections 7 & 8
  • Fair Administrative Action ActSection 7(2); Section 9(2)
  • Constitution of Kenya, 2010Articles 47 & 50
  • Employment and Labour Relations Court (Procedure) Rules, 2024Rule 10(2)
  • Employment ActSections 47(5) and 41

Cases cited (7)

  • Republic V Attorney General & 4 Others ex-parte Dismond Hashim Lalji
  • Republic V Kenyatta University Exparte Martha Waihuini Ndung'u
    (2019) eKLR
  • Albert Nyabuto Nyauntu V Kenya Accountants & Secretaries National Examination Board (KASNEB)
    (2020) eKLR
  • Odek V Cooperative Bank Limited
    (2022) eKLR
  • Bett Francis Barngetuny & Another V Teachers Service Commission & Another
    (2015) eKLR
  • Pashito Holdings Ltd & Another V Paul Nderitu Ndung'u
  • Salmon V Salmon & Co Ltd
Jurisdiction invoked
Sections 8 & 9 of the Law Reform Act and Order 53 Rule 3 of the Civil Procedure Rules (judicial review proceedings)

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, "Akolo v Board of Directors, Amatsi Water Services Company Limited & 2 others; Attorney General (Interested Party) (Judicial Review Application E002 of 2024) [2025] KEELRC 356 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/356/eng@2025-02-13

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