[2012] KEELRC 35 (KLR)
The court held that where the Director of Public Prosecution does not expressly respond to a request for consent to prosecute, the resulting constructive consent cannot be used to subject parties to criminal proceedings in matters that are properly within the jurisdiction of employment dispute resolution mechanisms...
Source-derived case information.
- Citation
- [2012] KEELRC 35 (KLR)
- Parties
- Applicant: Parbat Siyani Construction Ltd; Applicant: Parbat Siyani; Applicant: Mukesh Halai; Applicant: Nitin Basais Valji; Respondent: Director of Public Prosecution; Respondent: Attorney General; Interested Party: Samson Wanjala Matete; Interested Party: Geoffrey Ongesa Manono
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 1 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Judicial Review and for Stay
- Outcome
- Leave granted for judicial review; leave to operate as stay of intended private prosecution; further directions for service and costs in the cause.
- Judges
- B Ongaya
- Legal Topics
- Judicial Review, Private Prosecution, Employment Disputes, Labour Officer Investigations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Parbat Siyani Construction Ltd
Applicant
Parbat Siyani
Applicant
Mukesh Halai
Applicant
Nitin Basais Valji
Applicant
Director of Public Prosecution
Respondent
Attorney General
Respondent
Samson Wanjala Matete
Interested Party
Geoffrey Ongesa Manono
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Judicial Review and for Stay
Legal Issues
- 1 Whether leave should be granted to file judicial review proceedings for prohibition and stay of intended private prosecution.
- 2 Whether employment disputes should be subjected to criminal process where statutory dispute resolution mechanisms exist.
Ratio Decidendi
The court held that where the Director of Public Prosecution does not expressly respond to a request for consent to prosecute, the resulting constructive consent cannot be used to subject parties to criminal proceedings in matters that are properly within the jurisdiction of employment dispute resolution mechanisms established by statute and the Constitution. The court found that employment disputes should be addressed through the frameworks provided by the Employment Act, Labour Institutions Act, and the Industrial Court, rather than through private criminal prosecutions. Accordingly, the court granted leave to file judicial review proceedings and ordered that the leave operate as a stay...
Court Disposition
Leave granted for judicial review; leave to operate as stay of intended private prosecution; further directions for service and costs in the cause.
Orders
- Prayers 1, 2, and 3 of the chamber summons dated 30.08.2012 are granted.
- Applicant to file and serve the Notice of Motion as prescribed in the rules.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
Industrial Court of Kenya
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PARBAT SIYANI CONSTRUCTION LTD}
PARBAT SIYANI
MUKESH HALAI
NITIN BASAIS VALJI………..................................………………… APPLICANTS
VERSUS
DIRECTOR OF PUBLIC PROSECUTION ………………….. 1ST RESPONDENT
ATTORNEY GENERAL................................…………….......... 2ND RESPONDENT
AND
SAMSON WANJALA MATETE
GEOFFREY ONGESA MANONO……….....................…..…INTERESTED PARTIES
RULING
This is an application for leave to file judicial review application for the prerogative orders of prohibition and for the leave to operate as stay of an intended private prosecution.
The Applicant’s Counsel has submitted that the intended prosecution would arise out of the default consent of the Director of Public Prosecution (DPP) in review of the interested parties’ letter dated 22. 08. 2012. The letter states that the interested parties would deem themselves to have obtained the DPP’s consent if the allowed 7 days from 22. 08. 2012 lapsed.
Counsel has submitted that the matter in dispute is subject to investigation by a Labour Officer under the Employment Act, 2007, and the Labour Institutions Act, 2007.
This court finds that in the circumstances where the interested parties would enjoy default consent for want the DPP’s express response to the request for consent amounts to a constructive decision that a stay order would apply. If a stay order is not issued the applicant will be subjected to a private criminal proceeding on the basis of a constructive consent to commence prosecution. The court further finds that the matters of employment should not be submitted to a criminal process in circumstances whereby statutory provisions and the constitution has clearly spelt out the investigative and dispute resolution institutional framework which include this court and the Labour officers.
In the circumstances the court:
(a)Grants the prayers in No. 1, 2 and 3 of the chamber summons dated 30. 08. 2012.
(b)The applicant to file and serve the Notice of motion as prescribed in the rules.
(c)The Applicant shall serve the pleadings, supporting documents and this court orders upon interested parties within 7 days of filing the Notice of motion.
(d)Costs in the cause.
Delivered at Nairobi this 30th day of August, 2012in presence of Ms P.K. Makori holding brief for Mr. Kelvin Mogeni for Applicant.
Byram Ongaya
JUDGE