[2018] KEELRC 996 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU

MISC. NO. 1 OF 2018

(AS CONSOLIDATED WITH MISC APP. NOS. 2, 3 & 4 OF 2018)

(Before Hon. Justice Mathews N. Nduma)

IN THE MATTER OF AN APPLICATION BY WILSON KIPLIMO SIGEI FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ORDERS AGAINST THE COUNTY GOVERNMENT OF NANDI

REPUBLIC (EX PARTE WILSON KIPLIMO SIGEI)........................APPLICANT

VERSUS

THE COUNTY GOVERNMENT OF NANDI .................................RESPONDENT

J U D G M E N T

1. Judicial Review application dated 25th February, 2018 and filed on 6th March, 2018 with consolidated others seek the following orders:-

(i) AN ORDER OF CERTIORARI to remove to this Honourable court to be quashed, the decision of one Dr. Francis K. Sang (made in his capacity as the Respondent’s Acting County Secretary) exhibited in his letters to the Applicant dated the 14th of December 2017 by which the Respondent purports to have commenced disciplinary proceedings with a view to dismissing them from service with the Respondent as in the various positions held by the Applicants.

(ii) AN ORDER OF PROHIBITION prohibiting the Respondent from proceeding with any disciplinary proceedings against the Applicants on the basis of the allegations contained in the said letters dated the 14th December, 2017.

(iii) The costs of this application be provided for.

2. The applications are supported on grounds set out on the face of the application as follows:-

(i) The Acting county Secretary has no power to make the aforesaid orders.

(ii) The order is premature as no intra departmental proceedings have ever been undertaken against the applicant with regard to the allegations founding the order.

(iii) The said Order violates the Applicant’s constitutional right to fair trial and fair administrative action.

(iv) The said Order was made without recourse to due process.

(v) The order to interdict the applicant is capricious, ill motivated and informed by irrelevant extraneous factors coming as it is after the Applicant had long been redeployed from the department where allegations against him have arisen from.

(vi) The orders fly in the face of the provisions of The Relevant Code of Conduct Governing the disciplinary process of officers of the Applicant’s cadre and are therefore discriminatory in their tenor and effect.

(vii) The orders are based on obviously spurious allegations lacking in the requisite particularity reducing the whole process to a charade and an exercise in witchunt.

(viii) The order breeches all the Constitutional and statutory safeguards that the Applicant enjoys under the sections of law cited in the caption to this application.

(ix) The order of interdiction is without proper factual or legal basis and amounts to punishment before judgement in the circumstances and is otherwise intended to intimidate, defame and or cow the Applicant to submit to a process that is otherwise illegal and therefore amounts to an unfair labour practice.

(x) The orders and the manner of their execution smirks of gross malafides.

(xi) The reasons or allegations given in support of the order are neither valid, nor fair.

3. The applications are opposed vide a replying affidavits of Dr. Francis Sang, the Acting County Secretary of the Respondent.

Facts of the Case

4. The Exparte applicants are accountants, and County Education Fund Managers of the Respondent in the Department of Agriculture, livestock and fisheries and the office of Chief Officer, Finance and Economic Planning respectively.

5. The Exparte Applicants received a show cause letter dated 14th December, 2017 making various allegations of misconduct and poor work performance against them. They were asked to show cause why they should not be dismissed from service. They were placed on interdiction on half salary, full house and medical allowances until the matter was heard and determined.

6. The exparte applicants responded to the letter in writing denying the allegations and challenging the lawfulness, validity and generality of the allegations against them.

7. Alleges that the interdiction is open ended and should be quashed, and the employer prohibited from proceeding against them any further.

8. The Respondent states that Article 235(1)(c) of the constitution as read with Article 236 (b) bestows upon the County Government powers of disciplinary control over persons holding County Offices provided due process is followed.

9. That the interdiction of the applicants was to pave way for internal investigations. That the interdiction letter dated 14th December, 2017 is appropriate, legal and within the Law. That disciplinary function vest in the employer and court should be slow in interfering with the internal processes except in extraordinary circumstances which have not been exhibited in this matter.

10. That the applications lack merit and they be dismissed with costs.

Determination

11. The issue for determination whether the applicants have raised any valid grounds for quashing the decision of the employer to discipline them and prohibit the employer from any further disciplinary proceedings against them.

12. The Respondent is a public body with constitutional and statutory powers of disciplinary control vested on it. The powers of judicial review are exercised by the courts on account of breach of the rules of natural justice, that is to say;

(i) The employer has condemned the applicants without granting them a fair hearing or

(ii) The disciplinary tribunal was wholly biased in that the disciplinarian was the prosecutor, judge and Jury in the matter.

13. The rules of natural justice as we know them have in Kenya been augmented by venerable constitutional provisions granting persons right to fair hearing and fair administration action as contained under Articles 50(1) & (2) and 47 of the constitution of Kenya 2010.

14. Furthermore, parliament enacted, The Fair Administrative Act, of 2015 which guides all the processes of administrative actions against persons to ensure that they are fair and expeditious.

15. The Employment Act, 2007 under sections 36, 41, 43, 45 and 49 provides further dictates to be followed and remedies that ensue on the part of a defaulting employer.

16. The exparte Applicants and Respondent have an employee and employer relationship. The Applicants have not raised any violations of Article 47 and 50 of the Constitution nor have they relied on the fair Administration Actions Act in the matter. No constitutional remedies lie in this matter therefore.

17. Furthermore, the exparte Applicants have not relied on the rights and remedies set out in the Employment Act, 2007 in this matter. No remedies can therefore issue to them on the basis of that Act.

18. Instead prerogative remedies of certiorari and prohibition are sought to quash the decision of the employer to discipline the Exparte Applicants and to prohibit any further disciplinary process.

19. It is the considered view of the court that the Exparte Applicants bear the onus under sections 107, 108 and 109 to prove on a balance of probabilities that their right to a fair and expeditious administrative action or their right to a fair hearing under Articles 47(1) and 50(1) & (2) respectively have been violated or are threatened to be violated.

20. Alternatively, the exparte Applicants must show that either of the two limbs of the Principles of natural justice have been violated or are about to be violated to warrant issuance of the prerogative orders of certiorari and prohibition.

21. The Exparte Applicants have failed to prove their case on a balance of probabilities in all these respects. The Exparte applicants must participate in the due process already commenced by the Respondent just like every other employee who is alleged to have deviated from the prescribed norms of the institution they serve.

22. Accordingly, the Applications lack merit and are dismissed with costs.

Judgment Dated, Signed and delivered this 4th day of October, 2018

Mathews N. Nduma

Judge

Appearances

Mr. Kopot for Exparte Applicant

M/s Cheptoo Masai for Respondent

Chrispo – Court Clerk