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ELRCPartially AllowedJudicial Review (substantive notice of motion dated 8th April 2016, filed 7th April 2016)

Republic v Kenya National Examination Council ex parte Thomas Mackenzie [2016] KEELRC 404 (KLR)

Employment and Labour Relations Court
4 November 2016
3,019 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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KNEC's retirement of an official without a proper hearing was unlawful, but the court says damages, not judicial review, is the right remedy.

What this practically means

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Executive summary

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The applicant, Principal Examinations Administrator – Field Administration Division at the Kenya National Examinations Council, was suspended on 29th March 2016 amid investigations into examination leakages. He obtained leave to apply for certiorari and prohibition, with leave operating as a stay of the suspension. The respondent nonetheless issued a show cause letter, lifted the suspension, and retired the applicant in public interest effective 25th April 2016 after considering only his advocates' written response. The applicant brought contempt proceedings and a substantive motion. On contempt, the court found the interim orders were not wide or unambiguous enough to bar disciplinary action and dismissed the application, holding contempt must be proved beyond reasonable doubt. On the substantive motion, the court framed three issues: fair administrative action under Article 47 and Section 4(3) of the Fair Administrative Actions Act, breach of natural justice, and ultra vires conduct. It upheld the validity of the suspension signed by the chairperson (the CEO/Secretary being himself suspended), but found the respondent violated the rules of natural justice and its own manual by retiring the applicant without an oral disciplinary hearing. Certiorari was spent since the suspension had been lifted, and prohibition was academic as the applicant had already been retired; the court advised a civil suit for damages for unlawful and unfair termination. Each party was ordered to bear its own costs. Judgment delivered at Nairobi on 4th November 2016 by Mathews Nderi Nduma, Principal Judge.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the claimant was given a fair administrative action in terms of Article 47 of the Constitution of Kenya, 2010 as read with Section 4(3) of the Fair Administrative Actions Act, 2015
  2. 2.Whether the respondent violated the Rules of natural justice
  3. 3.Whether the respondent acted ultravires the KNEC Act and the respondent's manual

Key legal issues

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01

Whether the suspension letter signed by the chairperson rather than the Council Secretary was valid

Holding

Valid - the decision to suspend was made by the board; the chairman merely conveyed it in the absence of the CEO/Secretary

Reasoning

Clause 12:31:16 of the manual required the Council Secretary to sign suspension letters, but the minutes showed the CEO/Secretary was himself suspended and absent from the meeting. The board validly made the decision and the chairman conveyed it; the validity of the meeting was not challenged.

p. 5
02

Whether retiring the applicant in public interest after only a written response to a show cause letter satisfied fair administrative action

Holding

No - the respondent violated Section 4(3) of the FAAA and its own manual by failing to afford an oral disciplinary hearing

Reasoning

Clause 12:20:2 of the manual guaranteed fair hearing; Clause 12:30 contemplated a disciplinary committee. The respondent only sought a written response; none of the FAAA s.4(3) essentials (oral hearing, disclosure, questioning of witnesses, reasons) were met. Retiring the applicant in public interest on written representations alone was unlawful and ultra vires the manual.

p. 6
03

Whether the respondent was in contempt of the interim stay order

Holding

No - the stay order was not wide or clear enough to prohibit disciplinary and retirement action

Reasoning

Following Ochino and Magondu, contempt requires an unambiguous order, proper notice, and breach proved beyond reasonable doubt. The interim orders stayed the suspension pending inter partes hearing but did not restrain disciplinary action or retirement in public interest, so the respondent's conduct was not contemptuous.

p. 3
04

What remedies remain open to the applicant

Holding

A civil suit for damages for unlawful and unfair termination; certiorari was moot and prohibition academic

Reasoning

The suspension had been lifted and the applicant already retired in public interest, so the judicial review remedies sought could not restore him. The court observed that choice of suit in employment matters determines whether appropriate relief is obtained.

p. 7

Legal principles established

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  • Contempt requires the order to be clear and unambiguous, proper notice of its terms, and breach proved beyond reasonable doubt
  • Where a clear procedure for redress of a grievance is prescribed by the Constitution or an Act, that procedure must be strictly followed
  • Retirement in public interest requires a prior finding upon proof of unsuitability, arrived at through due process including a fair hearing

Court orders

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  1. 1.Dismissal of the contempt application - the applicant did not prove contempt beyond reasonable doubt
  2. 2.Finding that the respondent violated the rules of natural justice and Section 4(3) of the Fair Administrative Actions Act by retiring the applicant in public interest without a disciplinary hearing
  3. 3.Declaration that the applicant's remedy is a civil suit for damages for unlawful and unfair termination
  4. 4.Each party to bear their own costs of the suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

Jurisdiction invoked
Judicial review under Order 53 of the Civil Procedure Rules; Article 47 of the Constitution of Kenya, 2010 as read with the Fair Administrative Actions Act, 2015

Relief refused

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Order of certiorari quashing the suspension decision dated 29th March 2016

The suspension had already been lifted upon issuance of interim orders, rendering the relief spent

p. 7

Order of prohibition against replacing/interfering with the applicant's duties

The applicant had already been removed from office and retired in public interest; the remedy is a civil suit for damages

p. 7

Contempt finding and punishment against the respondent

The stay order did not clearly and unambiguously prohibit disciplinary action; contempt was not proved beyond reasonable doubt

p. 3

Costs

Each party to bear their own costs of the suit

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, the applicant has not proved the offence of contempt beyond reasonable doubt and the application is dismissed.
p. 3contempt - standard of proof
In light of the findings above, the court finds that, the respondent violated one of the rules of natural justice by not giving the applicant a fair hearing before retiring him in public interest.
p. 7natural justice - fair hearing before retirement in public interest
Furthermore, the conduct by the respondent was ultravires its own manual and express provisions of the Fair Administrative Actions Act, 2015.
p. 7ultra vires administrative action
The only remedy available to the applicant is to file a civil suit for damages for the unlawful and unfair termination of his employment by the respondent in view of the findings of the court herein.
p. 7remedies - damages as the appropriate remedy
In view of the peculiar findings by the court in this application, each party to bear their own costs of the suit.
p. 8costs order (final orders)

Issues in the judgment

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minor

Judgment inconsistently cites the manual clause on signature of disciplinary letters, referring to both 'Clause 12:31:16' and 'Clause 12:31:6'

minor

Judgment inconsistently refers to the Constitution of Kenya as '2014' and '2010'

minor

Typographical errors: 'Baard' for 'Board', 'abitinio' for 'ab initio', 'flout' for 'fraught'

minor

Judgment records the respondent as taking issue with the lifting of the suspension, though it was the respondent who lifted it - apparent error in the narrative

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 Kenya National Examination Council ex parte Thomas Mackenzie [2016] KEELRC 404 (KLR)", Case Analysis (2016). Judicial Review (substantive notice of motion dated 8th April 2016, filed 7th April 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/404/eng@2016-11-04

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