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ELRCOtherJudicial Review Application (Chamber Summons filed 6th September 2022)· [2023] KEELRC 3313 (KLR)

Thiga v Principal Secretary, Ministry of Education & another (Miscellaneous Judicial Review 40 of 2022) [2023] KEELRC 3313 (KLR)

Employment and Labour Relations Court
20 December 2023
HWHellen Wasilwa
3,994 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A former teacher won the right to challenge her dismissal in judicial review after the court rejected a technical objection, but got no order pausing the decision.

What this practically means

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Executive summary

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This is a ruling on a notice of preliminary objection in a judicial review matter before the Employment and Labour Relations Court (Hellen Wasilwa J, ruling delivered virtually on 20th December 2023). The Applicant, a former teacher dismissed by the Teachers Service Commission effective 21st March 2018 following alleged refusal to report to a transferred station, sought leave to file a judicial review application for certiorari, prohibition and mandamus to quash a review decision dated 9th March 2022 upholding her dismissal and to compel reinstatement, with leave to operate as a stay. The 2nd Respondent objected that the application was time barred under section 9(2) of the Law Reform Act, section 12(3) of the ELRC Act and section 90 of the Employment Act; that the orders were overtaken by events; that mandamus cannot enforce private rights; and that the Commission, being the proper juristic person under Article 237, was not joined. The Applicant argued time runs from service of the review decision (9th March 2022), that misjoinder does not defeat a suit, and that judicial review is a distinct constitutional remedy. The court held the preliminary objection raised both factual and legal issues, taking it beyond the Mukisa Biscuit threshold, and dismissed it as unmerited. Leave to institute the judicial review application was granted but was not to operate as a stay; the substantive application was to be filed within 30 days. Costs were ordered in the cause. The substantive judicial review questions remain for determination at the substantive stage.

Key legal issues

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01

Whether the preliminary objection on limitation and futility could succeed

Holding

The preliminary objection failed because it raised both factual and legal issues requiring consideration of facts

Reasoning

The court noted that the objection contended the application was time barred and that the orders sought had been overtaken by events, but these contentions entailed factual enquiry into the dates of the decisions, their communication and implementation. Such matters cannot be resolved on a preliminary objection in the Mukisa Biscuit sense. Accordingly the objection was found unmerited.

p. 8
02

Whether leave to apply for judicial review should issue

Holding

Leave to institute the judicial review application was granted, but without stay

Reasoning

Having dismissed the preliminary objection, the court exercised its discretion to allow the applicant to institute the substantive judicial review application, but declined to render the leave operative as a stay of the impugned decisions, and set a 30-day timeline for filing.

p. 8

Legal principles established

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  • A preliminary objection that raises both factual and legal issues falls outside the scope of a true preliminary objection and cannot be upheld without considering the facts

Court orders

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  1. 1.The preliminary objection is dismissed as unmerited
  2. 2.Leave granted to the Applicant to institute the judicial review application
  3. 3.The leave granted shall not operate as a stay
  4. 4.The judicial review application to be filed within 30 days from the date of the ruling
  5. 5.Costs in the cause
Jurisdiction invoked
Order 53 Rule 1(1) & (2) of the Civil Procedure Rules, sections 8 and 9 of the Law Reform Act

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, "Thiga v Principal Secretary, Ministry of Education & another (Miscellaneous Judicial Review 40 of 2022) [2023] KEELRC 3313 (KLR)", Case Analysis (2023). Judicial Review Application (Chamber Summons filed 6th September 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3313/eng@2023-12-20

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