[2022] KEELRC 13378 (KLR)

Republic v Teacher Service Commission; Shianzwi (Interested Party) (Judicial Review 2 of 2022) [2022] KEELRC 13378 (KLR) (1 December 2022) (Ruling)

Neutral citation: [2022] KEELRC 13378 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Bungoma

Judicial Review 2 of 2022

JW Keli, J

December 1, 2022

Between

Republic

Applicant

and

Teacher Service Commission

Respondent

and

James Ateku Shianzwi

Interested Party

Ruling

1. Judicial Review No. E002 of 2022 Exparte Chamber Summons Application dated August 26, 2022sought for leave for grant of the following orders:-i.That the Application be certified urgent and be heard on priority basis and during vacation.ii.That leave be and is hereby granted to the exparte applicant to commence judicial review proceedings against the Respondents for judicial orders of:-a.Certiorari to bring into this court the 1st Respondent’s decision dated 9th day of March, 2022 for purposes of quashing the same dismissing the interested party from employment and removing him from the register of teachers.b.An order of Mandamus compelling the 1st Respondent to reinstate the Interested Party back into employment upon its decision dated March 9, 2022 being quashed.iii.That the grant of leave in 2 above do operate as stay of the 1st Respondent’s decision of 9th day of March, 2022 until the proceedings herein are heard and determined.iv.That costs of the exparte chamber summons be provided for.

2. The matter was placed before Justice Radido who ordered the Application be heard inter-partes when the matter came for directions. The Respondent who had entered appearance had not filed response. Court ordered application be canvassed by way of submissions. The parties complied.

3. The Application under section 10 of Jurisdiction Act and Order 53(2) CPRis ideally exparte in chambers.

4. The court has considered the submissions of the parties. The Applicant submission after the disciplinary process of the Respondent he was dismissed from service and decision communicated vide letter dated 9th March, 2022.

5. Order 53 Rule 2 of the Union Procedure Rules provides for leave to be granted to apply for order of Certiorarito remove any proceedings for purposes of being quashed. Where application is made not later than 6 moths after date decision. section 9 (3) of the law Reform Act reiterates application for leave for CertiorariOrder be made not later than 6 months of the Claim.

6. The Applicant submits he meets the threshold the letter communicating decision being made on March 9, 2022and application filed August 24, 2022. The 6 months were to lapse on September 7, 2022.

7. To buttress his position he relied on decision on Pastoli v Leabale Destrict &others(2008) 2 EA stating the Applicant in Judicial review must demonstrate procedural impropriety which he submits he has in his statement of clam. That deregistration as a teacher was draconian.

8. The Respondent did not file response but submissions despite directions to do so on September 22, 2022.

9. The Respondent submits on fact of fairness option process and whether leave merited.

10. Since no response filed , the court focused on the timelines for Certiorari orders. The Respondent submits that the Claimant was dismissed on the December 10, 2022and decision of March 9, 2022only upheld the decision .

11. That quashing decision of the March 9, 2022where leave the dismissed of December 10, 2022still in place have orders in vacuum.

Decision. 12. The court finds and determines pursuant to order 53 of the company procedure Rules and section 9 of the Law Reform Act leave to seek order of Certiorari must be made not later than six months of the claim. The court finds that the Applicant was dismissed on the December 10, 2020 vide a letter dated January 18, 2021 . The Claimant applied for review of the dismissal decision .

13. On the March 9, 2022the Respondent communicated decision of the review case and upheld the dismissal and removal from the register of teachers.

14. Consequently the court finds that the dismissal decision was made on December 10, 2020. The instant application is outside the six months.

15. Leave is declined to commence Judicial Review proceedings against Respondent for order of Certiorari.

16. The court holds that Order of Mandamus sought was hinged on the Order of Certiorari. The court holds the entire exparte Chamber Summons of August 26, 2022 unmerited and is dismissed with costs to the Respondent.

17. The suit is struck out consequently. The court holds that the substantiative claim remains unheard and the claim being within 3 years statutory limitation the Claimant is free to file normal claim in pursuant of his rights.

18. The Exparte Chamber summons dated August 26, 2022 is dismissed with costs to the Respondent.

19. File is ordered closed.

20. It is so ordered.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT BUNGOMA THIS 1ST DAY OF DECEMBER, 2022. J. W. KELI,JUDGE.In the presence of :-Court Assistant: Brenda WesongaClaimant : Present in personRespondent : Mulaku holding brief for Ms Ngare.