[2002] KEHC 258 (KLR)
The court held that the application for leave to seek orders of certiorari was premature because the disciplinary process had not been concluded and the applicant had not been denied an opportunity to be heard. The internal disciplinary machinery of the Teachers Service Commission should not be interfered with at...
Source-derived case information.
- Citation
- [2002] KEHC 258 (KLR)
- Parties
- Applicant: Karungo Thuku Kabia; Respondent: Teachers Service Commission
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 310 of 2002
- Procedural Posture
- Miscellaneous Application / Ruling on Leave Application
- Outcome
- application dismissed
- Legal Topics
- Judicial Review, Disciplinary Proceedings, Certiorari, Mandamus, Prohibition, Employment Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Karungo Thuku Kabia
Applicant
Teachers Service Commission
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Leave Application
Legal Issues
- 1 Whether the applicant is entitled to leave to apply for orders of certiorari, mandamus, and prohibition against the respondent's disciplinary actions.
- 2 Whether the High Court should interfere with the internal disciplinary process of the Teachers Service Commission at this stage.
- 3 Whether the orders sought can be granted in the context of an employer-employee relationship.
Ratio Decidendi
The court held that the application for leave to seek orders of certiorari was premature because the disciplinary process had not been concluded and the applicant had not been denied an opportunity to be heard. The internal disciplinary machinery of the Teachers Service Commission should not be interfered with at this stage. Furthermore, the orders of mandamus and prohibition sought could not issue in the context of an employer-employee relationship governed by contract, as the court cannot compel the respondent to retain or pay the applicant as a teacher. The factual disputes raised, such as whether the applicant deserted duty, are not suitable for determination in judicial review...
Court Disposition
application dismissed
Orders
- The application for leave to apply for orders of certiorari, mandamus, and prohibition is dismissed.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC APPLICATION NO. 310 OF 2002
KARUNGO THUKU KABIA ……………………DEFENDANT
VERSUS
TEACHERS SERVICE COMMISSION………RESPONDENT
RULING
Applicants seeks leave to apply for
(a) An order of certiorari to remove to the High Court and quash Notice of interdiction dated 28. 12. 2001
(b) An order of mandamus to compel the respondent to allow applicant to exercise his powers and functions as a teacher and to be properly remunerated as such
(c) An order of prohibition restraining respondent from deducting any part or the whole of the applicants salary or otherwise from disturbing applicants employment.
I have read the statement to support the application. The letter dated 24. 5.2001 KTK4 asked applicant to show cause why he should not be disciplined for breach of Chapter IX section 69 of code of Regulations for teachers which prohibit a teacher from instituting Civil Proceedings connected with his official position without consent of the Attorney General. Applicant concedes that he had instituted HCCC NO. 508/2001 without consent of the Attorney General. By a letter dated 28. 12. 2001 the Teacher service Commission informed applicant was given a notice of interdiction and notice to sack him as a teacher. The charges against him are stated in the letter. The letter invited him to make a statement to TSC. The letter also informed him that he will be given an opportunity to be heard before case is determined. The intended application for an order of certiorari to quash the Notice dated 28. 12. 2001 is premature. The basis of the Notice is shown – breach of Regulations 6(a) The applicants case has not been determined. He will be given an opportunity to be heard during the determination as Notice clearly states.
It is wrong to interfere with the internal disciplinary machinery of the respondent at this stage. If an adverse decision is made against the applicant during disciplinary proceedings he will have another chance of filing an application to quash the decision. Regarding leave to apply for orders of mandamus and prohibition an order of mandamus and prohibition cannot issue from in the terms sought. The respondent is employed under a contract of employment. The relationship between applicant and respondent is that of employee and employer. The respondent cannot be compelled to retain a teacher in its employment and pay him. If the respondent has decided that the applicant breached the codes of regulation of employment and if Respondent decides that applicant is not a suitable person as a teacher.
The facts stated to support those orders cannot be determined in a Judicial Review application e.g court cannot decide whether or not applicant deserted duty for 1 ½ years. Those facts can only be determined in a Civil suit. In brief I am satisfied that prima facie there is no valid legal basis for applying for orders of certiorari, and mandamus and prohibition. I dismiss the application.
E. M. Githinji’
Judge
7. 5.2002
Mr. Munyondo present