Republic v Lake Basin Development Authority; Chere (Exparte Applicant) (Judicial Review E045 of 2023) [2024] KEELRC 1913 (KLR)
The bottom line
#Kenya's Employment Court refused to reinstate a dismissed Lake Basin Mall employee via judicial review, ruling private employment disputes belong in ordinary employment proceedings.
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 Ex parte Applicant merits grant of Judicial Review orders
Key legal issues
#Whether the Respondent's decision to summarily dismiss the Ex-parte Applicant was tainted with illegality, irrationality or procedural impropriety warranting certiorari
The dismissal was not proved to be tainted with any of the three grounds; the employer's prerogative to discipline once the Board was constituted is not amenable to review interference.
The court applied the Pastoli test of illegality, irrationality and procedural impropriety, and the Municipal Council of Mombasa principles confining judicial review to process rather than merits. The Applicant was initially reinstated only because the Respondent's Board was not in place; once the Board was fully constituted it exercised its prerogative to dismiss, which the court cannot interfere with. Judicial review remedies cannot be used to dictate to a statutory body how to implement its discretion.
Whether judicial review remedies (certiorari and mandamus) are available to enforce reinstatement in an employment contractual relationship
No - the Applicant's relationship with the Respondent was governed by an employment contract in the purview of private law, and judicial review lies only for public law rights.
The court endorsed the Respondent's submission that judicial review remedies are unavailable in a private contractual relationship, citing Makupa Transit Shade and the English authorities in Shadrack Kibichi Bundotich distinguishing statutory public law rights from rights arising solely from a breach of a contract of employment. Dismissal of employees falls squarely within the Employment Act, which adequately caters for summary dismissal and reinstatement.
Whether the Applicant was entitled to costs against the Respondent's Board members for disregarding prior court orders
No - the motion was not fashioned as a contempt application, and a fresh suit to enforce orders in other suits is an abuse of process.
The court noted the Applicant sought to have the Respondent condemned to pay costs for disregarding orders in prior judicial review suits, but observed that enforcing orders granted in other suits through a fresh suit is an abuse of process, and since the motion was not framed as contempt, compliance with the stay orders did not arise for determination here.
Legal principles established
#- A judicial review court is concerned only with the process leading to a decision, not with its merits, and must not act as a court of appeal over the decision maker.
- To succeed in judicial review an applicant must show the decision is tainted with illegality, irrationality or procedural impropriety.
- An employer's prerogative to discipline and dismiss an employee, once exercised by a fully constituted board, is not subject to judicial review interference absent illegality, irrationality or procedural impropriety.
- Quashing of a dismissal decision does not bar an employer from instituting subsequent disciplinary proceedings.
- A fresh suit cannot be used to enforce orders granted in other suits; doing so is an abuse of the process of the court.
Court orders
#- 1.The Notice of Motion dated 26th February, 2024 seeking orders of certiorari and mandamus is dismissed
- 2.Costs of the application awarded to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Judicial review jurisdiction of the Employment and Labour Relations Court under leave granted on 7th February, 2024; judicial review as a constitutional right (Article 47 fair administrative action as discussed)
Relief refused
#Order of certiorari to quash the Respondent's decision contained in the letter dated 27th October, 2023 dismissing the Applicant from employment
The Applicant did not prove the decision was tainted with illegality, irrationality or procedural impropriety
Order of mandamus compelling the Respondent to reinstate the Applicant to his previous position
Judicial review remedies are unavailable to enforce a private contractual employment relationship, and reinstatement is discretionary and impracticable
Costs of the application borne personally by the Board members of the Respondent jointly and severally with the Respondent
The motion was not fashioned as a contempt application; enforcement of prior orders in other suits could not be pursued through this fresh suit
Costs
It is dismissed with costs to the Respondent.
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.
In the end, I find the motion devoid of merit and is for dismissal. It is dismissed with costs to the Respondent.
The Applicant has not proved that the decision to dismiss him is tainted with illegality, irrationality or procedural impropriety as to warrant grant of the judicial review orders of certiorari that he seeks.
In my view, once the Board was fully constituted, and it exercised its prerogative to dismiss the Ex-parte Applicant, the court cannot interfere in the exercise of this prerogative.
For the Ex parte Applicant to file a fresh suit seeking to enforce orders granted in two others suits he filed on similar issues, is to say the least an abuse of the process of the court.
Issues in the judgment
#Internal inconsistency in the number/date of the earlier judgment relied on by both sides: the grounds describe the judgment as delivered on 15th March, 2023 while the Respondent's submissions and the court's analysis refer to a judgment rendered on 23rd March, 2023
Discrepant reference to prior suits as 'E015 of 2023' versus 'E015 of 2022' within the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Lake Basin Development Authority; Chere (Exparte Applicant) (Judicial Review E045 of 2023) [2024] KEELRC 1913 (KLR)", Case Analysis (2024). Kisumu ELRC Judicial Review No. E045 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1913/eng@2024-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.