Republic v Kenya National Examination Council ex parte Thomas Mackenzie [2016] KEELRC 404 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the respondent violated the Rules of natural justice
- 3.Whether the respondent acted ultravires the KNEC Act and the respondent's manual
Key legal issues
#Whether the suspension letter signed by the chairperson rather than the Council Secretary was valid
Valid - the decision to suspend was made by the board; the chairman merely conveyed it in the absence of the CEO/Secretary
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.
Whether retiring the applicant in public interest after only a written response to a show cause letter satisfied fair administrative action
No - the respondent violated Section 4(3) of the FAAA and its own manual by failing to afford an oral disciplinary hearing
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.
Whether the respondent was in contempt of the interim stay order
No - the stay order was not wide or clear enough to prohibit disciplinary and retirement action
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.
What remedies remain open to the applicant
A civil suit for damages for unlawful and unfair termination; certiorari was moot and prohibition academic
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.
Legal principles established
#- 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
#- 1.Dismissal of the contempt application - the applicant did not prove contempt beyond reasonable doubt
- 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.Declaration that the applicant's remedy is a civil suit for damages for unlawful and unfair termination
- 4.Each party to bear their own costs of the suit
The bench
#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
#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
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
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
Costs
Each party to bear their own costs of the suit
Quotable passages
#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.
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.
Furthermore, the conduct by the respondent was ultravires its own manual and express provisions of the Fair Administrative Actions Act, 2015.
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.
In view of the peculiar findings by the court in this application, each party to bear their own costs of the suit.
Issues in the judgment
#Judgment inconsistently cites the manual clause on signature of disciplinary letters, referring to both 'Clause 12:31:16' and 'Clause 12:31:6'
Judgment inconsistently refers to the Constitution of Kenya as '2014' and '2010'
Typographical errors: 'Baard' for 'Board', 'abitinio' for 'ab initio', 'flout' for 'fraught'
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.