[2006] KEHC 997 (KLR)
The court held that the applicants' dispute with the respondent arose out of an ordinary private contract of employment and not from any statutory underpinning that would confer public law rights. As such, the remedies of certiorari and prohibition, which are exclusively of a public law character, were...
Source-derived case information.
- Citation
- [2006] KEHC 997 (KLR)
- Parties
- Applicant: James Omoto; Applicant: Wilberforce Oduori; Applicant: Ronald O. Okacha; Applicant: Daniel Onyango Ogombe; Applicant: Millicent A. Olwero; Applicant: Sara Sirma; Applicant: Michael Kungu; Respondent: Kenya Railways Corporation
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 975 of 2006
- Procedural Posture
- Judicial Review Application / Ruling on Leave to Apply for Judicial Review
- Outcome
- leave to apply for judicial review refused
- Legal Topics
- Unfair Dismissal, Judicial Review, Public Law Remedies, Employment Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
James Omoto
Applicant
Wilberforce Oduori
Applicant
Ronald O. Okacha
Applicant
Daniel Onyango Ogombe
Applicant
Millicent A. Olwero
Applicant
Sara Sirma
Applicant
Michael Kungu
Applicant
Kenya Railways Corporation
Respondent
Procedural Posture
Judicial Review Application / Ruling on Leave to Apply for Judicial Review
Legal Issues
- 1 Whether the applicants' dismissal by the respondent is amenable to judicial review remedies of certiorari and prohibition.
- 2 Whether the applicants' employment contracts were statutorily underpinned to confer public law rights enforceable by judicial review.
- 3 Whether the dispute is of a public law nature or a private contractual matter.
Ratio Decidendi
The court held that the applicants' dispute with the respondent arose out of an ordinary private contract of employment and not from any statutory underpinning that would confer public law rights. As such, the remedies of certiorari and prohibition, which are exclusively of a public law character, were inappropriate. The applicants failed to demonstrate that their employment was statutorily underpinned or that their claim was of a public law nature. Consequently, the court refused to grant leave to institute judicial review proceedings, directing that the applicants' remedies, if any, lay in private law for wrongful or unfair dismissal.
Court Disposition
leave to apply for judicial review refused
Orders
- Leave to institute judicial review proceedings is refused.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA
Civil Suit 975 of 2006
JAMES OMOTO
WILBERFORCE ODUORI
RONALD O. OKACHA
DANIEL ONYANGO OGOMBE
MILLICENT A. OLWERO
SARA SIRMA
MICHAEL KUNGU……………..….......................…….…….………..APPLICANTS
VERSUS
KENYA RAILWAYS CORPORATION ………....…................……RESPONDENT
RULING
By a Summons filed pursuant to Order LIII rules 1 (1), (2) and (4) of the Civil Procedures, James Omoto, Wilberforce Oduori, Ronald Akacha, Daniel Onyango Ogombe, Mrs Millicent Awuori Olwero, Mrs. Sarah Sirma and Michael Kungu hereinafter referred to as the Applicants applied for leave to institute Judicial Review Proceedings in the nature of certiorari and prohibition to be directed at Kenya Railways Corporation hereinafter referred to as the Respondent. The Applicants each filed a verifying affidavit in support of the Summons. Pursuant to Order LIII rule 1(2) of the Civil Procedure Rules a statement of fact was filed.
The background of this matter appears to be simple and straightforward. On the 12th day of September, 2006, the Respondent through the Staff Management Committee ‘B’ (administration) dismissed the Applicants from its employment. It was also communicated to the Applicants that they would lose all their terminal benefits. The material placed before this court shows that the woes bedeviling the applicants began sometimes in the month of May 2006. The Applicants were charged to the effect that between the 4th and 5th day of May 2005, they grossly misconducted themselves by mobilizing and inciting staff to boycott duties leading to serious disruption of train operations. They were then suspended on 8th May 2006. The suspension was lifted on the 19th day of June 2006 on a without prejudice basis. On the 12th day of September 2006 or thereabout the Respondent dismissed the Applicants. This decision prompted the Applicants to institute these proceedings.
In order for this court to grant the Applicants leave to institute judicial review proceedings, they must show to this court that they have a prima facie case. I appreciate the fact that the dispute is that which arises out of the contract of employment. In this regard the Applicants are the employees of Kenya Railways Corporation the Respondent herein. The remedies which are proposed to be sought by the Applicants are in the nature of prohibition and Certiorari. These remedies are exclusively public law character as opposed to private law rights. My understanding of the law is that the statutory right not to be unfairly dismissed is a private law right not enforceable as a matter of public law. The remedy of certiorari is inappropriate to quash a decision taken by an employer to dismiss his employee. Quashing the decision will not restore the employee to his employment.
The ordinary employer is free to act in breach of his contracts of employment and if he does so his employee will acquire certain private law rights and remedies in damages for wrongful dismissal, compensation for unfair dismissal, an order for reinstatement or re-engagement and so forth. Parliament can underpin the position of public authority employees by directly restricting the freedom of the public authority to dismiss, thus giving the employee ‘public law’ rights and at least making him a potential candidate for administrative law remedies. It will be this underpinning which injects the element of public law. In the matter before this court, it was incumbent upon the Applicants to show that their employment contract with the Respondent was statutorily underpinned.
The material placed before me clearly indicate that the dispute is that of an ordinary private civil right of contract between him and his employees. It was the duty of the Applicants to show that their claim was that of a public law nature.
In the end I am not convinced that the Applicants are entitled to leave. Consequently leave is refused.
Dated and delivered this 19th day of October 2006
J. K. SERGON
JUDGE
In open court in the presence of Mr. Oguk holding brief for Mr. Opulu for the Applicants.