[2017] KEELRC 2007 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT ELDORET

JUDICIAL REVIEW CAUSE NO. 3 OF 2017

IN THE MATTER OF ARTICLES 41 AND 43 OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF THE LAW REFORM ACT

AND

IN THE MATTER OF THE EMPLOYMENT ACT

IN THE MATTER OF THE TEACHERS SERVICE COMMISSION ACT

IN THE MATTER OF THE TEACHERS SERVICE COMMISSION CODE OF REGULATIONS FOR TEACHERS

BETWEEN

JOHNSTONE INAWETI EX PARTE APPLICANT

AND

TEACHERS SERVICE COMMISSION RESPONDENT

AND

NELLY KAMONYA INTERESTED PARTY

RULING

1. The ex parte applicant moved Court under certificate of urgency on 26 September 2017 seeking

1. …

2. THAT LEAVEbe granted to the petitioner who is the applicant to apply for Judicial Review and for an order that a DECLARATION do issue in terms that the interdiction of the petitioner by the respondent conveyed through the letter dated 26th July 2016 was null and void for non-compliance with the mandatory procedures provided in the regulations and section 34 of the Teachers Service Commission Act.

3. THAT LEAVE be granted to the petitioner who is the applicant to apply for Judicial Review and for an order of CERTIORARI do issue to call into this High Court the disciplinary proceedings dated 23rd May 2017 conducted in respect of the petitioner by the respondent and on being so called be quashed on arrival.

4. THAT LEAVE be granted to the petitioner who is the applicant to apply for Judicial Review and an order of CERTIORARI do issue calling unto this High Court for purpose of being quashed of the respondent dismissing the petitioner for employment as teacher conveyed in the letter dated 15th June 2016 and on being so called be quashed.

5. THAT LEAVE be granted to the petitioner who is the applicant to apply for Judicial Review and an order of MANDAMUS do issue compelling the respondent to reinstate the petitioner in his position as teacher with his whole benefits to the date of the offending interdiction and the said respondent be and is hereby so compelled to act.

6. THAT LEAVE be granted to the petitioner who is the applicant to apply for Judicial Review and an order of PROHIBITION do and is hereby issued prohibiting the respondent and or her agents from instituting other or further disciplinary proceedings against the petitioner based on the same complaint and the said respondent be and is hereby so prohibited.

7. That leave applied for herein once granted do operate as stay of the interdiction of the petitioner and stay of the decision of the respondent removing the petitioner from the register of teachers and also the decision dismissing the petitioner from teaching as conveyed in the respondents letters dated 26/7/2016, 15/06/2016 and 15/06/2017.

2. Although applications for leave are generally heard and determined ex parte, the Court directed the ex parte applicant to serve the application upon the Respondent and the Interested Party.

3. The Respondent filed a replying affidavit sworn by a Senior Deputy Director, Dinah Mwaita in opposition to the application and submissions were taken on 20 November 2017.

4. The Court has given due consideration to the material placed before it including the submissions and case law cited in the ex parte applicant’s written submissions.

5. It appears that the Interested Party may be a minor as the affidavit of service by Paul Oketch deposes that she is a student in a named High School. The competence of joining her as an Interested Party in the instant application is therefore at large.

6. On the merits of the application for leave, the Court notes that the ex parte applicant was dismissed over 1 year ago, and that the contestations will include whether a hearing as envisaged under the Employment Act, 2007 and the Code of Regulations for Teachers were conducted by the Respondent.

7. Such a contestation will invariably require the testing of disputed facts and such testing would not be suitable for determination on the papers as is the practice under Judicial Review.

8. Similarly, the fairness and validity of the reasons leading to the dismissal of the ex parte applicant has been called into question, and such a challenge should suitably be channelled through an Ordinary Cause and not through the judicial review route.

9. Further, the gravamen of the ex parte applicant’s complaint is unfair termination of contract and it is not lost to the Court that proceedings challenging the fairness of a termination of employment ought to be instituted as contemplated by the Employment Act, 2007, the Employment and Labour Relations Court Act and the Rules made thereunder.

10. In simple words, the ex parte applicant has other competent and solid avenues and options to use in approaching and seeking the intervention of the Court. He should utilise those other options.

11. The consequence of the foregoing is that leave is denied and the application dated 26 September 2017 is dismissed with no order as to costs.

Delivered, dated and signed in Eldoret on this 21st day of November 2017.

Radido Stephen

Judge

Appearances

For ex parte applicant Mr. Arwanda instructed by A.B.L. Musiega & Co. Advocates

For Respondent Mr. Keter instructed by Patricia Naeku, Advocate, Teachers Service Commission

Court Assistants Etyang/Martin