Victor Rutto v Patrick Muliro & 2 others [2020] KEELRC 949 (KLR)
The bottom line
#A sacked SACCO CEO lost his bid for reinstatement and pension payments because Kenya's employment court says those claims need a full lawsuit, not judicial review.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objections (sub judice, res judicata, breach of SACCO Regulations, abuse of process) had merit
The objections on subsidiary regulations failed, as did the res judicata and sub judice objections; the applicant was properly before the court
The Regulations relied on govern internal SACCO operations and being subsidiary legislation cannot override the law. On res judicata and sub judice, the court compared the earlier High Court JR No.21 of 2015, which dealt with the inquiry report and surcharges, with the present application concerning reinstatement and pension, and found a clear distinction between the matters.
Whether judicial review orders of mandamus and certiorari should issue for reinstatement, pension contributions and quashing of the new CEO's appointment
The orders were refused; employment disputes require a Memorandum of Claim, not judicial review
Judicial review is a special supervisory jurisdiction confined to legality, rationality and procedural propriety. Reinstatement under section 49 of the Employment Act and the pension claim require interrogation of facts and evidence, which affidavits cannot resolve. The applicant, well represented and conversant with the court's procedure, ought to have filed a Memorandum of Claim.
Legal principles established
#- Preliminary objections must be pure points of law not dependent on disputed facts
- Subsidiary regulations cannot override the law
- Where a specific procedure for redress is prescribed by the Constitution or an Act of Parliament, it must be strictly followed
- Judicial review jurisdiction is supervisory and limited to legality, rationality and procedural propriety
- Employment disputes such as reinstatement and pension claims must be pursued by Memorandum of Claim rather than judicial review
Court orders
#- 1.The judicial review application is dismissed
- 2.Costs to the respondents
- Jurisdiction invoked
- Sections 3, 4, 7, 9 and 11 of the Fair Administrative Actions Act; Section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Victor Rutto v Patrick Muliro & 2 others [2020] KEELRC 949 (KLR)", Case Analysis (2020). Judicial Review Application No.3 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/949/eng@2020-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.