[2013] KEHC 688 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

(JR) CIVIL CAUSE NO. 174 OF 2012

IN THE MATTER OF: AN APPLICATION BY ALI DHOLE BOCHA FOR LEAVE TO APPLY FOR ORDERS OF CERTIORARI, PROHIBITION & MANDAMUS

AND

IN THE MATTER OF: THE CONSTITUTION OF THE REPUBLIC OF KENYA, THE PUBLIC SERVICE COMMISSION ACT, 2012 (NO.13 OF 2012) & THE CODE OF REGULATIONS.

AND

ALI DHOLE BOCHA...............................................................................................................APPLICANT

VERSUS

THE HON. THE ATTORNEY GENERAL ...........................................................................1ST RESPONDENT

HENRY OBANYI... ...........................................................................................................2ND RESPONDENT

THE PRINCIPAL SECRETARY (MINISTRY OF INDUSTRIALISATION & ENTERPRISE)...3RD RESPONDENT

THE CABINET SECRETARY FOR INDUSTRIALISATION & ENTERPRISE.........................4TH RESPONDENT

JUDGEMENT

INTRODUCTION

In his Motion brought on Notice dated 12th June 2013 filed the same day the ex parte applicants herein, Ali Dole Bocha, seeks principally the following orders:

THAT certiorari be and is hereby issued quashing the decision of 10th August, 2012 made by the 2nd Respondent sending the Applicant on compulsory leave to allegedly pave way for investigations.

THAT Certiorari be and is hereby issued quashing the decision of 11th October, 2012 made by the 2nd Respondent interdicting the Applicant while he contemplates to institute several disciplinary proceedings.

THAT mandamus be and is hereby issued to the 2nd – 4th Respondents compelling them to;-

a) Reinstate the Applicant to gainful employment b) Pay the Applicant salary arrears due form 13th October, 2012 till full and final payment; and c) Interest on (b) above form October, 2012 till full and final payment.

Prohibition be and is hereby issued prohibiting the 2nd – 4th Respondent from suspending, sacking and/or terminating the Applicant’s employment as a result of the application herein.

THAT damages arising from the matZters herein and interest thereon be awarded to the Applicant.

THAT costs be awarded to the Applicant.

There were other prayers indicated as prayers 5 and 6 which in my view were not prayers but grounds of the application.

EX PARTE APPLICANT’S CASE

The said Motion is supported by Statutory Statement filed 18th June 2012 and Verifying Affidavit sworn the same day by the ex parte applicant herein, Ali Dole Bocha.

According to the ex parte applicant, he worked as a Supply Chain Management Assistant IV in the Ministry of Co-operative Development & Marketing (now under the Ministry of Industrialisation & Enterprise and hereafter “The Said Ministry”) upto 10th August, 2012, when the 2nd Respondent illegally, unlawfully and unprocedurally sent him on compulsory leave to allegedly pave way for investigations. Although he responded to the allegations, the said interdiction was not lifted. Instead on 11th October 2012 he was interdicted and threatened with dismissal and surcharge without the issues raised by him being addressed. In the letter of interdiction the applicant was required to respond thereto within 10 days from 11th October, 2012 yet it was received in the mail registry on 18th October, 2012 (9 days after it was written and 1 day before his 10 days expired) and forwarded to the applicant on 22nd October, 2012 (3 days after the given 10 days expired). According to the applicant the interdiction was done without him being heard.

According to the applicant, under the Code of Regulations, whereas it is the Principal Secretary who is the authorised officer who is mandated to interdict a public officer yet the 2nd Respondent, who is not the authorised officer, proceeded to interdict him unlawfully, illegally and without regard to due process.

According to the applicant the said actions were motivated by the fact that he had exposed the ill goings in the procurement department and had declined to be a party to the same. The applicant avers that though interdiction should not last for more than 6 months, the 2nd respondent has proceeded to interdict him for close to 1 year without being given a chance to defend himself against false accusations as a result of which he has been unable to access facilities from financial institutions.

RESPONDENTS’ CASE

In opposition to the application the respondents filed a replying affidavit sworn on 15th November 2013 by Henry Obanyi, the Head of Human Resource Department in the Ministry of Industrialisation and Enterprise and the 2nd Respondent herein.

According to him, whereas the applicant was employed and worked as a Supply Chain Management Assistant IV in the said Ministry, time and again it is a requirement by the Government and for public interest Ministries to conduct internal and external audit and it is a report from such audit which highlighted inter alia loss of Kshs 5,950,399. 00 which report was submitted to the Internal Auditor General and the Ministry’s Accounting Officer. Thereafter a meeting was convened and a three member sub-committee constituted which committee confirmed the said loss. Thereafter it was decided that the officer be suspended to pave way for investigations which investigations similarly revealed the said loss leading to the interdiction of the officer.

According to the deponent, he has not at any time abrogated himself the powers but as a Human Resource Manager has been delegated powers to perform and carry out duties on behalf of the Principal Secretary and he is empowered to deal with cases of suspension/interdiction of public officers in the Government Ministries. According to him, the respondents acted within the premise of the law in interdicting the applicant hence the matter is not amenable to judicial review.

DETERMINATIONS

I have considered the issues raised herein.

The main issue for consideration in this matter in my view is whether the applicant’s interdiction was proper.

Under Regulation G.31(1)(vi) of the Code of Regulations, 2006, the power to interdict or suspend an officer is vested in the Public Service Commission. However, under Regulation G.31(2) the said Commission has delegated certain powers to “Authorised Officers” and “Authorised officer” under the definition part of the said Regulations for the purposes of the applicant’s case was “the Permanent Secretary who exercises supervision over the Ministry concerned or over the Ministry in which the public officer concerned holds office as the case may be.” Under the relevant provision of Regulation G.32(1)(ii) of the said Regulations, the power to suspend the applicant may be exercised “when as a result of the proceedings for dismissal taken against him, the Authorised Officer considers that the officer ought to be dismissed.” The Respondents have on their part exhibited purported copies of Code of Regulations, 2012. It is however clear that what is exhibited is a “draft” and in any case there is no provision therein which contradicts the provisions of the 2006 Regulations.

In this case the letter interdicting the applicant was signed by the second respondent on behalf of the Permanent Secretary. According to the respondents, the Human Resource Department is empowered to deal with cases of suspension/interdiction of public officers in the Government Ministries. No authority has however been given in support of this robust argument. Nowhere in the 2nd Respondent’s affidavit has been alleged that the action to interdict the applicant was taken by the Permanent or Principal Secretary in the Ministry. As correctly submitted on behalf of the applicant, the Permanent /Principal Secretary when exercising his/her powers to interdict a public officer does so under the powers delegated to him/her by the Public Service Commission. If the Permanent/Principal Secretary had delegated the same powers to the 2nd Respondent or to any other officers, that action would clearly have been contrary to the legal maxim “Delegata potestas non potest delegari” (a delegated power cannot be delegated).

In Hardware & Ironmonery (K) Ltd Vs. Attorney-General Civil Appeal No. 5 of 1972 [1972] EA 271, the Court expressed itself as follows:

“What matters is the taking of the decision and not the signature. If the Director had taken the decision that the licence was to be cancelled, he then, properly, have told the Trade Officer to convey the decision to the parties. But it is clear from the officer’s evidence that this is not what happened. The fact that the Act makes express provision for delegation of the Director’s powers makes it, if not impossible, at least more difficult to infer any power of delegation. There is no absolute rule governing the question of delegation, but in general, where a power is discretionary and may affect substantial rights, a power of delegation will not be inferred, although it might be in matters of a routine nature. The decision whether or not the licence should be revoked required the exercise of discretion in a matter of greatest importance, since it involved weighing the national interest against a grave injustice to an individual. It was clearly a decision to be taken only by a very senior officer and was not one in respect of which a power of delegation could be inferred.”

In the Uganda case of Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300, it was held:

“In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety ...Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality. It is, for example, illegality, where a Chief Administrative Officer of a District interdicts a public servant on the direction of the District Executive Committee, when the powers to do so are vested by law in the District Service Commission... Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards...Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.”[Emphasis mine.]

In Esther Kavuka Adagala vs. The Attorney General Nairobi HCCC No. 4086 of 1992 it was held that there needs to be a strict observance of the procedure in any disciplinary proceedings and that leads to consequential quashing of the disciplinary action on account of non-compliance with the laid down procedure. This position was emphasized in Joseph Mulobi vs. Attorney General & Another Nairobi HCCC No. 742 of 1985.

In this case it is clear that the person who interdicted the applicant, the 2nd Respondent, had no legal mandate to do so. His decision was clearly ultra vires and the interdiction of the ex parte applicant was illegal.

ORDER

It follows that the Notice of Motion dated 12th June 2013 is merited and an order of certiorari is hereby issued bringing into this Court the decision of 11th October, 2012 made by the 2nd Respondent interdicting the applicant and a mandamus is hereby issued compelling the 2nd to 4th respondents to reinstate the applicant to his position with full benefits.

Since there is no contemplated action to dismiss the applicant based on these proceedings the prohibition will not be granted as prohibition only issues to restrain a contemplated action or an action which has been commenced but has not been completed.

With respect to the damages, the remedies in judicial review proceedings are limited to certiorari, mandamus and prohibition. There is therefore no room for award of damages in such proceedings.

The applicant will have the costs of these proceedings.

Dated at Nairobi this day 19th of December 2013

G V ODUNGA

JUDGE

Delivered in the presence of Mr Wageni for Mbuthia for the applicant