[2022] KEELRC 3782 (KLR)
The court found that the applicants' interdiction was predicated solely on their arraignment for corruption offences. Once the criminal charges were withdrawn and the applicants discharged under section 87(a) of the Criminal Procedure Code, section 62(3) of the Anti-Corruption and Economic Crimes Act mandated that...
Source-derived case information.
- Citation
- [2022] KEELRC 3782 (KLR)
- Parties
- Applicant: Fredrick Onyango Chere; Applicant: Nelson Ouma Onyango; Applicant: Albert Omondi Ojango; Applicant: Godfrey Maina Mwangi; Applicant: Teresa Achieng Ochaka; Respondent: Lake Basin Development Authority
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Application E002 of 2022
- Procedural Posture
- Judicial Review Application / Judgment
- Outcome
- Application allowed in part; orders of mandamus and certiorari granted; no order as to costs.
- Judges
- S Radido
- Legal Topics
- Interdiction of Public Officers, Judicial Review Remedies, Termination of Criminal Proceedings, Public Service Employment, Withheld Salaries, Statutory Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Onyango Chere
Applicant
Nelson Ouma Onyango
Applicant
Albert Omondi Ojango
Applicant
Godfrey Maina Mwangi
Applicant
Teresa Achieng Ochaka
Applicant
Lake Basin Development Authority
Respondent
Procedural Posture
Judicial Review Application / Judgment
Legal Issues
- 1 Whether the respondent had legal basis to continue the applicants' interdiction after withdrawal of criminal charges.
- 2 Whether the applicants were entitled to payment of withheld salary, allowances, and benefits during interdiction.
- 3 Whether the decision to reinstate interdiction was lawful under the Anti-Corruption and Economic Crimes Act.
Ratio Decidendi
The court found that the applicants' interdiction was predicated solely on their arraignment for corruption offences. Once the criminal charges were withdrawn and the applicants discharged under section 87(a) of the Criminal Procedure Code, section 62(3) of the Anti-Corruption and Economic Crimes Act mandated that the interdiction lapse. The respondent's subsequent decision to reinstate the interdiction, pending advice from the Attorney General, lacked any statutory basis. The court held that the Authority had no legal justification to continue the interdiction or withhold the applicants' salaries, allowances, and benefits. Accordingly, the court granted orders of mandamus compelling...
Court Disposition
Application allowed in part; orders of mandamus and certiorari granted; no order as to costs.
Orders
- An order of mandamus is issued compelling the respondent to pay the applicants any withheld salary, allowances, and benefits during the period of interdiction.
- An order of certiorari is issued quashing the decision of the Lake Basin Development Authority dated December 10, 2021, which put on hold the lifting of the applicants' interdiction.
Full Case Text
Judgment text and source record
45 paragraphs
Chere & 4 others v Lake Basin Development Authority (Judicial Review Application E002 of 2022) [2022] KEELRC 3782 (KLR) (29 June 2022) (Judgment)
Neutral citation: [2022] KEELRC 3782 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Kisumu
Judicial Review Application E002 of 2022
S Radido, J
June 29, 2022
IN THE MATTER OF AN APPLICATION BY FREDRICK ONYANGO CHERE, NELSON OUMA ONYANGO, ALBERT OMONDI OJANGO GODFREY MAINA MWANGI AND TERESIA ACHIENG OCHAKA TO APPLY FOR ORDERS OF MANDAMUS AND CERTIORARI AND IN THE MATTER OF THE LAKE BASIN DEVELOPMENT AUTHORITY ACT, CAP 442 LAWS OF KENYA AND IN THE MATTER OF ANTI-CORRUPTION AND ECONOMIC CRIMES ACT NO. 3 OF 2003 AND IN THE MATTER OF THE PUBLIC SERVICE COMMISSION ACT, 2017 AND IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT, 2015 BETWEEN
Between
Fredrick Onyango Chere
1st Applicant
Nelson Ouma Onyango
2nd Applicant
Albert Omondi Ojango
3rd Applicant
Godfrey Maina Mwangi
4th Applicant
Teresa Achieng Ochaka
5th Applicant
and
Lake Basin Development Authority
Respondent
Judgment
1. On September 26, 2019, the Lake Basin Development Authority (the Authority) interdicted the 5 applicants after they were charged before the Magistrates Court with corruption offences. The interdiction letters indicated that the interdictions would continue until the finalisation of the criminal charges.
2. On November 2, 2021, the Director of Public Prosecutions applied to have the charges withdrawn under section 87(a) of the Criminal Procedure Code.
3. The magistrate duly discharged the applicants, and on November 15, 2021, the Authority notified them that the interdictions had been lifted. The Authority also instructed the applicants to apply for their accumulated leave days.
4. In a turn of events, the Authority wrote to the applicants on December 10, 2021, informing them that the Board had determined that the interdictions had been lifted prematurely, and the decision had been recalled pending further advice from the office of the Honourable Attorney General.
5. The Authority wrote to the Honourable Attorney General on December 16, 2021 seeking a legal opinion on whether the applicants should be reinstated to work considering the circumstances the criminal charges were terminated.
6. The applicants took the view that the decision to reinstate the interdiction(s) was without any legal foundation. On February 9, 2022, they moved the court seeking leave to commence judicial review proceedings.
7. Pursuant to directions by the court, the Authority filed a replying affidavit to the leave application on February 21, 2022.
8. The court granted the leave on February 22, 2022. The court ordered that the leave operates as a stay of the decision to reinstate the applicants’ interdiction.
9. The applicants thereafter filed a substantive motion on March 7, 2022 seeking orders:(1)An order of mandamus compelling the respondent to pay the applicants any withheld salary, allowances, and benefits during the period of interdiction.(2)An order of certiorari removing to the High Court for the purposes of quashing, the decision of the Lake Basin Development Authority issued on the December 10, 2021, in particular, the following orders: -(i)Putting on hold and holding in abeyance the lifting of the applicants’ interdiction until:(a)The management receives a legal opinion from the Attorney General on the matter.(b)The matter is discussed and approved by the Board.(3)Costs of and incidental to the application be provided for.(4)Such further or other relief as the honourable court may deem just and expedient to grant.
10. The Authority did not file a response/affidavit in opposition to the motion, and the court has, therefore, relied on the earlier replying affidavit filed in response to the application for leave.
11. The applicants filed joint submissions on June 7, 2022 (should have been filed and served on or before May 22, 2022), and the Authority, instead of filing submissions wrote to the applicants on June 23, 2022 in respect of settlement proposals. The letter was copied to the court.
12. The interdiction of the applicants was anchored on section 62 of the Anti-Corruption and Economic Crimes Act. The Authority informed the applicants that the interdiction(s) would subsist until the finalisation of the corruption charges.
13. The charges against the applicants were withdrawn by the Director of Public Prosecutions on November 2, 2021, as a result of which the Magistrates Court discharged the applicants.
14. The interdiction of the applicants was based on the operation of a provision of the Anti-Corruption and Economic Crimes Act. Under section 62(3) of the Act, the interdiction (suspension) lapses with the acquittal of the accused or discontinuation of the proceedings.
15. The section provides:(3)The public officer ceases to be suspended if the proceedings against him are discontinued or if he is acquitted.
16. The proceedings against the applicants were withdrawn under section 87(a) of the Criminal Procedure Code, and the Magistrates Court made an order to discharge them.
17. The discharge amounted to a discontinuation of the criminal proceedings.
18. There is no evidence before the court that the Director of Public Prosecutions has intimated that the applicants would be charged afresh in the near future. The Honourable Attorney-General had no role in the proceedings.
19. In the court’s view, in so far as the applicants' interdiction(s) was founded upon arraignment of the applicants on corruption offences which have been withdrawn and discontinued, by dint of section 62(3) of the Anti-Corruption and Economic Crimes Act, the Authority has no legal basis for continuing to place the applicants on interdiction.
20. The motion succeeds, and the court orders:(i)An order of mandamus is hereby issued compelling the respondent to pay the applicants any withheld salary, allowances, and benefits during the period of interdiction.(ii)An order of certiorari is hereby issued removing to the Employment and Labour Relations Court for the purposes of quashing, the decision of the Lake Basin Development Authority issued on the December 10, 2021, in particular, the following orders: -(i)Putting on hold and holding in abeyance the lifting of the applicants’ interdiction until:(a)The management receives a legal opinion from the Attorney General on the matter.(b)The matter is discussed and approved by the Board.
21. The applicants filed their submissions long after the agreed timeline and are denied costs. Each party to bear own costs.
DELIVERED THROUGH MICROSOFT TEAMS, DATED AND SIGNED IN KISUMU ON THIS 29THDAY OF JUNE 2022. RADIDO STEPHEN, MCIARBJUDGEAppearancesFor applicants Okello Adipo & Co AdvocatesFor respondent G & A Advocates LLPCourt assistant Chrispo Aura