Republic v Jomo Kenyatta University of Agriculture & Technology (JKUAT) Exparte Matilu Mwau [2017] KEHC 2788 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO.  156 OF 2015

IN THE MATTER OF: AN APPLICATION FOR ORDERS OF CERTIORARI PROHIBITION AND MANDAMUS.

AND

IN THE MATTER OF: ALLEGED SUSPENSION AND PROPOSED FALSE TERMINATION FROM EMPLOYMENT OF PROFESSOR MATILU MWAU BY JOMO KENYATTA UNIVERSITY OF AGRICULTURE AND TECHNOLOGY.

AND

IN THE MATTER OF: AN APPLICATION FOR JUDICIAL REVIEW

BETWEEN

REPUBLIC.............................................................................................................................APPLICANT

VERSUS

JOMO KENYATTA UNIVERSITY OF AGRICULTURE & TECHNOLOGY (JKUAT)....RESPONDENT

PROFESSOR MATILU MWAU........................................................................EX-PARTE APPLICANT

JUDGMENT

1. On  20th May  2015 Hon Mr Korir J granted to the exparte applicant  PROFESSOR MATILU MWAU  leave to institute   these Judicial  Review proceedings  against the Respondent JOMO KENYATTA UNIVERSITY OF AGRICULTURE & TECHNOLOGY (JKUAT)through a notice of motion  dated 26th May 2015 seeking the following  Judicial Review  orders.

a) An order of certiorari do issue to bring into this Honourable  court the respondent’s decision to allegedly and  falsely  suspend the applicant from duty which  was  communicated  to him by  way of a letter dated 8th April 2015 for purposes of being  quashed.

b) The said decision be quashed.

c) An order of prohibition do issue to prohibit the respondent  from purporting to dismiss the applicant from  employment  or taking  or  performing  any action in furtherance  of or in  connection with the said decision or in any other  way  taking  away adverse  action against the  applicant  in  furtherance of  or in connection  with the applicant’s former  employment  with the respondent.

d) An order of mandamus  do issue  directing  the  respondent  to pay applicant’s  salary  for the month  of  February, 2015 plus his terminal  dues  and  issue him with a clearance  certificate.

e) The costs of this application are provided for.

2. The  notice of motion as is stipulated  in Order  53 Rule  3(1)  of the Civil Procedure Rules is predicated on the statutory  statement and verifying affidavit filed together with the chamber  summons for leave.  The two instruments were filed on 19th May 2015.  The verifying  affidavit is  sworn on  15th May  2015 by professor  Matilu  Mwau  which  is quite  lengthy and detailed.

3. The gist of the applicant’s complaint is that he  was an Associate  Professor, Department of Microbiology  from 3rd July  2013   and  was  unfairly suspended  from his job  yet he had  by the time  of the alleged  suspension  resigned  from employment  with the respondent  University  and that  as at the time of filing  of  these proceedings, the  respondent’s  University  Council was  planning to purportedly  terminate his  employment  with the  University  which   actions  are  said  to be  baseless, senseless  and  founded  on malice.

4. The applicant  claims that the  respondent  alleged  that it  had received and  processed  a complaint  against him  by an  Master of Science student one  L Z M for allegedly  harassing   her sexually  which allegations  he denied  and that without  according him a  fair hearing,  he was  served  with  a notice  to  show cause  letter dated  18th March  2015  and that  despite  his show  cause  letter written  on 29th  March  2015, on 8th April 2015  he received  a letter of  suspension from duty  setting out  totally different  grounds for suspension  from those  contained in  the notice to show cause letter.  He therefore sought the court’s intervention.

5. In the replying affidavit  sworn by Professor Victoria  W. Ngumi  the Deputy Vice Chancellor (Administration) of  the  respondent  University, she confirms that  the applicant   was on 3rd July  2013  appointed  by the respondent  as an  Associate  Professor grade  14 in the Department of  Microbiology  on permanent  and  pensionable  basis  which terms  the  applicant  accepted.

6. The  respondent’s Deputy Vice Chancellor   deposes that on  12th February  2015  it  received  a  complaint  of sexual harassment  against the  applicant from a Ms L Z M,  a Master of Science student   upon which  the respondent  did on 18th March  2015  write to the  applicant  specifying  the  allegations  against him and  asking  him to show cause why  disciplinary  action should not  be taken against him.

7. That on 29th March 2015 the applicant responded to the notice to show cause which letter is still being deliberated upon by the respondent.

8. According  to the respondent, on  8th April  2015  it suspended  the  applicant  for  absenting  himself from duty  pending his appearance  before its  disciplinary  committee, for absenteeism.

9. In addition, it is contended by the respondent University that the applicant did not give the  requisite  notice for  resignation  and that he accepted  another  employment from the Consortium  for National  Health Research  on 15th September  2014  while  he  was  still in  employment of the  respondent University and  drawing  a  salary  there from, hence, he  acted  illegally  and therefore  not entitled to the  orders sought.

10. According to the respondent, the applicant’s application is incompetent, bad in law and an abuse of court process.

11. Both parties’ advocates filed and exchanged  written submissions  and  authorities to canvass  the  notice of motion  with the respondent’s counsel highlighting the same whereas the applicant’s counsel  wholly adopted  the pleadings, affidavits  and  written submissions and  supported by  a list and  bundle of  authorities  filed on 13th April  2016.  Their written submissions were filed on 9th June 2015 as skeletal submissions following the court’s directions.

12. The applicant in his submissions filed on his behalf by his counsel reiterates the grounds upon which the application is predicated and maintains that the respondent could not  purport to suspend  him on  8th April  2015 when he had  already  resigned  from its  employment  on 19th January  2015  and that the  respondent  breached the rules of natural justice  by failing to accord him a fair  hearing  hence the decision  was based on malice.

13. The applicant  denied allegations of any consensual or inappropriate  sexual  relations with his student Ms. L Z M and complains  that he was not allowed  to be represented  by his advocate at the questioning wherein allegations of sexual  harassment were leveled  against  him hence  the  decision  to suspend  him was  biased  and that  the  respondent  should   pay him his  terminal dues  and issue  him with a certificate  of service.  He relied on several authorities namely:-

1) Republic vs Thames Magistrate’s Court exparte Polemn [1974] 2 ALL ER 1219 where  it  was  held that  a party to  proceedings  should  be given a reasonable  opportunity  to present his case, and that includes a reasonable  opportunity  to prepare  his case  before  being called  to present it;

2) Pett  v Greyhound  Racing  Association  Ltd  [1969] CA  125  where it  was held that where  a matter concerns  a person’s  reputation and  livelihood, such a person has a right  to be presented  by a lawyer;

3) Geoffrey  Mwangi  Kariuki vs  University of  Nairobi  HC  Miscellaneous  Application  4788/1992where  the court held  that the  right to  legal representation  could  not be  denied;

4) Onyango  v  Attorney General  CA  [1986-1987] EALR  456 where it  was held that  a party must be   given a notice  which   contains  details  of the case  against  him to enable  him to fully  appreciate  the charge  or complaint  he is to face;

5) Republic vs Commissioner of Co-operatives exparte  Kirinyaga Tea Growers Co-operative Savings and Credit Society  Ltd[1991] EA 248where it  was  held that  a decision made in bad faith  is against  the  rules of natural justice.

14. The applicant  made it clear at paragraph  11 of  his submissions  that he seeks to quash  the  respondent’s  decision to allegedly  suspend him from employment and prohibit it from  proceedings to allegedly  terminate  his services.  Further, that  the  decision to allegedly  suspend  and thereafter  terminate the  applicant  was  preceded  by illegal  actions which are not  set out  in detail in the submissions.

15. The applicant  also relied  on the often  quoted  case of Kenya National Examination Council vs Republic Exparte  Geoffrey  Gathenji Njoroge  & 8 Others on the principles  applicable in application for Judicial Review orders of certiorari, prohibition  and mandamus.

16. The respondent’s  counsel  filed  written  submissions  on 14th October  2015 and submitted orally through Mr Mukele contending that the  High Court  in exercising  Judicial Review jurisdiction  should not be  concerned  with private  rights or  the merits of the  decision being  challenged  but with the decision making process as was espoused  in Municipal Council of  Mombasa  v Republic  exparte  Umoja  Consultants  Ltd  CA No. 185/2001.

17. The respondent also framed 4 issues for determination as hereunder;

a) Whether this court  has the requisite  jurisdiction to hear and  determine  this matter:-

18. On this question of requisite jurisdiction, it  was  submitted that Article  162(2)  of the Constitution of Kenya, 2010 establishes  the  Employment and  Labour Relations Court [ELRC] (the Court) and that  Section  12(1) of the Employment  and  Labour Relations  Court Act confers on the Court exclusive original and appellate jurisdiction to hear and  determine all disputes  referred  to it  in accordance  with Article 162(2)  of the Constitution and  the provisions  of the Act  or any  other written law which extends jurisdiction to the Court relating to  employment  and  labour relations and the  sections  lists  categories of disputes  relating employment  and  labour relations.

19. According to  respondent, the nature of the  orders sought herein relate to or arises from employer employee relationship which relation is not disputed as fitting  perfectly  well within Section 12 of the  Employment  and  Labour Relations Court  Act.

20. Accordingly, it was submitted that this court lacks jurisdiction to hear and determine this matter which should therefore be struck out with costs. Reliance was  placed  on Joseph Karobia Gicheru  vs  Michael Gachuki Gicheru [2013] e KLRwhere  the  Court of Appeal  made it clear that where a court  embarks  on hearing  and  proceeds to determine a dispute over which it has no  jurisdiction, the  entire  proceedings  are empty of legal life  and  are null and  void  ab initio.

b) Whether public law remedies are available in respect of private contracts.

21. According to the respondent, the applicant had not  demonstrated that  the respondent  had a statutory  duty  or existence of statutory  underpinnings  to invoke  this court’s jurisdiction, moreso, when the proceedings herein  were instituted  before the  Fair Administrative Action Act  2015 came into effect.  Reliance was placed  on Republic vs  Professor  Mwangi  S. Kimenyi  & another  exparte Kenya  Institute  for Public Policy and Research Analysis  (KIPPRA) CA 16/2008  Nairobi where the  court reiterated the  emphasis  in Republic  vs  BBC exparte Lavelle  [1983] 1 WLR  1302  that Judicial  Review  remedies  are not  available  in a situation  of employer-employee relationship.  Further, that since the  disciplinary procedure under which the applicant was   dismissed  arose out  of her contract  of employment  and  was  purely  private  and  domestic in character, the  applicant  was not entitled  to relief   by way of certiorari.

22. The respondent submitted that Judicial Review remedies can however be available in employer/employee relationships where the contract of employment has statutory underpinnings. Further reliance  was  placed on Republic vs  Sports Stadia  Management Board Exparte Michael Kinyua Njeru  and  Wilson  Otieno  Muganda where Honourable   Korir J  held that  there must be  public law  issues placed  before court  for  Judicial Review orders to issue.

c) Whether the application sustains the requisite threshold for the grant of the orders sought.

23. It  was  submitted that  the  applicant alleges that  on 19th January  2015   he tendered  his resignation  from his job with effect  from 1st March  2015   after  he had secured  a better job and  that it  was after his resignation that the respondent started harassing him.  In that case, it was submitted by the respondent’s counsel in contention that the applicant having resigned from employment, he cannot   seek orders which are predicated on the fact that he is still in employment with the respondent.

24. Accordingly, it was contended that the application  is overtaken by events  and therefore  there is  no basis upon  which the  Judicial Review  orders sought  can be granted  to him. In addition, that this court cannot issue orders in vain. Reliance was placed on Kenya Civil Aviation Authority exparte the Kenya Aircraft Maintainance Engineers  Association  & 3 Others Miscellaneous  Application 274/2010 Nairobi where  Musinga J ( as he then  was)  stated that  where the orders sought have been overtaken by events because the  impugned  circular was no longer  in force, the  court would  not issue  orders in vain.

25. It was further submitted on behalf of the respondent that the applicant had failed to demonstrate that the decision was tainted with illegality, irrationality, and procedural impropriety since he had merely been suspended pending investigations into the allegations.  It was  submitted  that the  applicant  had  failed to  demonstrate  that the respondent acted  wrongly  in suspending  him.

d) Whether the conduct of the applicant entitles him to the orders sought in the application.

26. The respondent’s counsel submitted that Judicial Review remedies are discretionary hence the court is obliged to consider the conduct of the parties before it.  It  was  submitted that  albeit  the  applicant  alleges that he resigned from employment with the respondent  on  19th January  2015  after  he secured  a better job elsewhere, it is  clear that  he  was still  an employee  of  the respondent  even after  taking up  his better job,  therefore earning  two salaries contrary to  the law. As such, it was contended that   his conduct is not worthy of the exercise of the court’s discretion in his favour and therefore the applicant is not entitled to the orders sought.  The court was urged to dismiss the application dated 26th May 2015 with costs.

DETERMINATION.

27. I have  carefully considered all the  foregoing  and in my  humble view, the main  issues for determination are two namely- whether  this court  has the  requisite  jurisdiction  to hear and   determine  this matter and if so, whether the exparte applicant is entitled to the judicial review remedies sought.  The first question is significant because if the court finds that it has no jurisdiction to determine this matter on merits then it will have to down its tools and say no more.

28. I shall therefore first and foremost  determine  the issue of jurisdiction of the court to hear  and determine  this matter, albeit the applicant  did not say  anything  regarding  this issue which  was  raised and argued  by  the respondent’s counsel Mr Mukele in extenso.

29. As s was correctly stated in Joseph Karobia Gicheru v Michael Gachuki  Gicheru(supra):

“ where a court  embarks  on hearing  and  proceeds  to determine a dispute  over which it  has no jurisdiction, the entire  proceedings are empty  of legal life and  are null and void  ab initio.  No amount of acquiescence  by any party to the  conduct of such  proceedings and no measure  of consent  by parties, no matter  how express  or deliberate  could confer  upon such court or  tribunal  such jurisdiction. The proceedings and orders are nullities and of no legal effect from inception and remain so to the end.”

30. By jurisdiction, as was held in Joseph Njuguna Mwaura & Others V Republic CR. Appeal No. 5 of 2008:

“ it is  incumbent  upon any  court  intending  to render  an opinion or determine  a matter to first  ascertain  the entry  point to the doors  of  justice, and that is  jurisdiction.”

31. The authority of the court is determined by the existence or the lack of jurisdiction to hear and determine disputes.  In essence, jurisdiction is the first hurdle that a court or tribunal will cross before it embarks on its decision making function.  In my understanding, courts have no jurisdiction in matters over which other arms of government have been vested with jurisdiction to act.

32. It has been held, not once and in the recent R vs Karisa Chengo &others SC Petition No. 5 of 2015that Courts guard their jurisdiction jealously but recognize that it may be precluded or restricted by either legislative mandate or certain special contexts.  It is a well-established principle that legal or constitutional provisions ousting the ordinary jurisdiction of the court must be construed strictly. (See also Republic vs Public Procurement and Administrative Review Board & another Exparte Selex Sistemi Integrati Nairobi HC Miscellaneous Application 1260/2007 [2008]  KLR  728.

33. In the premier and precedent setting decision on jurisdiction in Motor vessel “Lilian S” vs Caltex Oil (K) Ltd [1989] KLR 1 Nyarangi JJA (as he then was) stated:

“I think that is reasonably plain that a question  of jurisdiction ought to  be raised  at the  earliest opportunity  and the court  seized  of the matter  is then  obliged to decide the issue  right  away  on the material  before it.  Jurisdiction is everything.  Without it, a court has no power to make one more step.  Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence.  A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

34. The authority  for the above  holding  by the Court of Appeal  is to be  found in the writing of John  Beecroft  Saunders  Treatise Words and  Phrases legally defined” VOL 3: 1-N page 113  where it is stated:

“By  jurisdiction is meant  the  authority  which a court  has to decide matters that are litigated before it or to take  cognizance  of matters  presented  in a formal  way for its decision.  The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means.  If no restriction or limit is imposed the jurisdiction is said to be unlimited.  A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognizance or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics.  If the jurisdiction of an inferior  court or  tribunal  (including an arbitrator ) depends on the existence of a particular state of facts, the court or tribunal must inquire  in the existence  of the facts  in order  to decide  whether  it has  jurisdiction; but, except  where the court or tribunal has been  given  power to determine  conclusively  whether the  facts exist.  Where a court takes I t upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing.  Jurisdiction must be acquired before judgment is given.”

35. From the above authorities it is clear that jurisdiction of a court or tribunal emanates from the Constitution and statutes. In addition, the Constitution or statute  can limit  the court’s  jurisdiction and   where  it does limit, then the court is  expressly  barred  from exercising  such jurisdiction which it is divested of.

36. In the instant case, the respondent contends that the High Court has no jurisdiction to hear and determine the issues which are to be found in the notice of motion filed by the exparte applicant.  Such issues, as can be deduced from the prayers/orders of Judicial Review sought include:

a. Whether  this court  can bring  into  this court  and  quash  the  respondent’s  decision contained  in its letter  dated  8th April  2015  which allegedly  suspended  the  exparte applicant from  duty;

b. whether this court  can issue  a  Judicial Review  order of  prohibition  prohibiting  the  respondent  from purporting  to  dismiss the  exparte  applicant  from employment  or taking  or performing  any action in furtherance  of or in connection  with the said  decision or in any  other way taking any adverse  action against  the applicant  in furtherance  of or in  connection  with the applicant’s former  employment  with respondent;

c. and  whether the court  should issue an order  of mandamus  directing  the  respondent  to pay the  applicant’s salary  for the month  of  February plus his terminal dues and  issue  him  with a clearance  certificate.

37. From the  prayers  sought by the exparte  applicant,  I have no doubt  from the onset  that they  relate to a dispute  between  employer and  employee and  whether or  not those  prayers   are  merited  can only  be determined  by a court  of competent  jurisdiction. That court is the Employment and Labour Relations   Court (ELRC).  The reasons  for my above finding  are found  in Article 162(2) (a)  of the Constitution, Article  165(5)  (b)  of the Constitution  and Section  12  of the Employment  and  Labour Relations  Act, 2012.

38. Article 162(2)  of the Constitution contemplates the establishment  of a specialized  court with  jurisdiction to hear and determine  disputes  relating to Employment and Labour Relations. The same Article  at  Sub Article  3  empowers Parliament  to enact  legislation to confer  jurisdiction, powers  and  functions  to the said  court.

39. In 2012, Parliament enacted the Industrial Court Act (now amended to read Employment and Labour Relations Court Act). I was privileged to participate in its coming into being through the legislative drafting processes.

40. The Act at Section 4 establishes the Employment and Labour Relations Court as contemplated in Article 162(2) (a) of the Constitution.  Section 12(1) of the said Act provides:

“The court shall have exclusive original and appellate  jurisdiction  to hear and  determine  all disputes  referred  to it in  accordance with Article  162(2) (a)  of  the Constitution  and  the provisions of  this Act  or any  other written law  which  extends  jurisdiction to the court relating to Employment  and  Labour Relations.

41. The disputes which the Court is empowered to resolve are listed to include:

a) Disputes relating to or arising out of  employment  between an  employer and  an employee;

b) Disputes between an  employer and  a trade  union;

c) Disputes  between  trade unions;

d) Disputes between employer organizations.

e) Dispute between an employer’s organization or a federation and a member thereof.

f) Disputes concerning the registration and  election of  trade union  officials; and

g) Disputes relating to the registration and enforcement of collective agreements.

42. In the instant  case,  the exparte  applicant  claims that he  was   a former employee of the respondent but resigned on 1st March  2015  after serving  diligently  from 3rd July  2013  but that he  was requested to hold fort owing to the fact that the  Department  did not have  an alternative lecturer.  It was while he was still serving the respondent University that he was allegedly suspended.  He claims  that he was not  accorded  a  fair hearing  and  even  then, that  having  resigned  from employment, there could not be any disciplinary action that the  University could   take against him.

43. The applicant also claims that the University was in the process of terminating his services yet it had not paid him his terminal  dues following  his resignation  hence, the actions  by the respondent University  were intended  to frustrate  and  deny  him his  terminal  dues  hence this court  should order (compel) the respondent  to pay  him and  prohibit  the respondent from  terminating  his services.

44. On the part of the respondent, it has admitted that the applicant was its employee who was not genuine. That he was issued with Notice to show cause for absenteeism and that he had absconded duty.

45. In my  humble view, the above   issues arising  from the dispute  between the applicant  employee or former employee depending on the merits of each party’s claim which this court is not determining at this stage and the respondent employer or former employer can only be  resolved  by a court  of competent  jurisdiction  which is the Employment and Labour Relations Court. This is the case because the dispute relates to employment  and  labour relations  and more specifically, is a dispute  relating to or  arising  out of  employment  between  an employer  and  an employee.

46. That being  the case, Article 165(5) (b) of the Constitution is clear that the High Court shall not have   jurisdiction  to hear  and  determine   matters falling within the jurisdiction  of the  courts  contemplated  in Article  162(2)  of the  Constitution. One of those courts is the employment and Labour Relations Court and the Environment and Land Court.

47. The express divesting  of jurisdiction from the High Court  to the  courts contemplated  in Article 162(2) of the Constitution  by the Constitution which is the supreme law of the land by dint of Article 2 of the Constitution is a limitation  or bar to  jurisdiction of the Court.

48. Accordingly, this court would be acting contrary to the  Constitution if it  heard and  determined this matter  on its merits  as it has no jurisdiction to do so and  without jurisdiction, a court of law  acts in vain.

49. It is for the  above  reasons that this court  finds and  holds  that it has no jurisdiction to hear and  determine  this matter  on its merits. Section  12(7) of the Employment  and  Labour Relations Court Act  empowers the ELRC  to issue  orders including  Judicial Review  orders which  are sought herein. This is not a specialized court. It is the High Court exercising Judicial Review Jurisdiction as stipulated in section 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules among other provisions of the law.

50. This matter was filed in court in 2015 long after the transitional period contemplated in the Sixth Schedule Part IV of the Transitional and Consequential Provisions of the Constitution of Kenya, 2010.  By 2015, the   Employment  and  Labour Relations Court had long been  established  and  operationalised  with the  appointment of competent  judges  to hear and   determine  such disputes as this.

51. Accordingly, I find and hold that the Judicial Review proceedings  hereto as instituted are  incompetently  before this court  which lacks  the  requisite jurisdiction  to hear and  determine.  The notice of motion dated 26th May 2015 is hereby struck out.

52. Each party to bear their own costs of these proceedings.

Dated, signed and delivered in open court at Nairobi this 19th day of September, 2017.

R.E. ABURILI

JUDGE

In the presence of:

Mr Mburu John for the exparte applicant

N/A for the Respondent

CA: George