Republic v Teachers Service Commission Ex parte Johnstone Inaweti & another [2017] KEELRC 2007 (KLR)
The bottom line
#A Kenyan teacher's bid to challenge his dismissal by judicial review failed because unfair termination claims belong in the Employment and Labour Relations Court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether leave should be granted to the ex parte applicant to apply for judicial review orders of certiorari, mandamus and prohibition challenging his interdiction and dismissal by the respondent
- 2.Whether the disputes raised are suitable for determination by way of judicial review or whether the applicant should pursue other avenues
Key legal issues
#Suitability of judicial review for unfair termination disputes
Judicial review was unsuitable because the applicant's complaint was essentially one of unfair termination requiring resolution of disputed facts, and leave was denied.
The court noted the applicant had been dismissed over a year earlier and that the contestations would include whether a hearing under the Employment Act, 2007 and the Code of Regulations for Teachers was conducted. Testing such disputed facts is not amenable to the affidavit-based judicial review process. The proper forum is the Employment and Labour Relations Court under the Employment Act framework. The applicant was directed to use those alternative avenues.
Competence of joining an apparently minor as Interested Party
The court observed that the competence of joining the Interested Party, who appears to be a minor and a student, was at large.
The affidavit of service deposed that the Interested Party was a student at a named High School, suggesting she was a minor. The court flagged this but did not determine it, as the application was dismissed on the substantive ground that judicial review was an inappropriate avenue. The observation does not amount to a final ruling on joinder.
Legal principles established
#- Where a judicial review challenge requires testing of disputed facts, judicial review is an unsuitable avenue and the party should pursue an ordinary cause.
- Challenges to the fairness of termination of employment must be instituted under the Employment Act, 2007, the Employment and Labour Relations Court Act and the Rules made thereunder.
Court orders
#- 1.Leave to apply for judicial review is denied
- 2.The application dated 26 September 2017 is dismissed with no order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Supervisory jurisdiction over applications for leave to apply for judicial review
Relief refused
#Leave to apply for a declaration that the interdiction of 26 July 2016 was null and void
The complaint concerns unfair termination which must be pursued under the Employment Act framework, not judicial review
Leave to apply for certiorari to quash the disciplinary proceedings of 23 May 2017 and the dismissal
The contestations require testing of disputed facts unsuitable for judicial review
Leave to apply for mandamus compelling reinstatement and prohibition against further disciplinary proceedings
Leave denied; appropriate remedy lies in an ordinary cause or proceedings under the Employment Act
Costs
No order as to costs - the application was dismissed with no order as to costs
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.
Such a contestation will invariably require the testing of disputed facts and such testing would not be suitable for determination on the papers as is the practice under Judicial Review.
the gravamen of the ex parte applicant’s complaint is unfair termination of contract and it is not lost to the Court that proceedings challenging the fairness of a termination of employment ought to be instituted as contemplated by the Employment Act, 2007, the Employment and Labour Relations Court Act and the Rules made thereunder.
the ex parte applicant has other competent and solid avenues and options to use in approaching and seeking the intervention of the Court. He should utilise those other options.
leave is denied and the application dated 26 September 2017 is dismissed with no order as to costs.
Issues in the judgment
#The ex parte applicant is referred to interchangeably as 'petitioner' and 'applicant' in the prayers
There is an apparent discrepancy in the dates of the dismissal letters referenced in prayer 7 versus the letter date in prayer 4
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Teachers Service Commission Ex parte Johnstone Inaweti & another [2017] KEELRC 2007 (KLR)", Case Analysis (2017). Judicial Review Application dated 26 September 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/2007/eng@2017-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.