Republic v Teachers Service Commission & Irene Kainyu Ex-Parte Luke Mutira Chabari [2017] KEELRC 1625 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NYERI

JUDICIAL REVIEW APPLICATION NO. 2 OF 2016

REPUBLIC

-VERSUS-

TEACHERS SERVICE COMMISSION............... 1ST RESPONDENT

IRENE KAINYU....................................................2ND RESPONDENT

-EX-PARTE-

LUKE MUTIRA CHABARI..............................................APPLICANT

(Before Hon. Justice Byram Ongaya on Friday 17th March, 2017)

JUDGMENT

The applicant filed a notice of motion on 29. 06. 2016 through I.C. Mugo & Company Advocates. The application was brought under Order 53 Rule 3(1) of the Civil Procedure Rules and sections 8 and 9 of the Law Reform Act. The applicant prayed for orders:

a) That the 1st respondent’s proceedings and dismissal letter issued and signed by D.A. Oyoo for Secretary/ Chief Executive Officer, Teachers Service Commission on 16. 12. 2015 and served upon the ex-parte applicant on 10. 01. 2016 be quashed and or set aside.

b) That the court be pleased to order and direct that the ex-parte applicant be reinstated back to the teachers’ service by the 1st respondent.

c) That the court be pleased to order and direct the 1st respondent to pay the ex-parte applicant all unpaid salary or allowance from the date the ex-parte applicant was interdicted by the 1st respondent.

d) The costs of the suit be provided for.

The application was based on the applicant’s affidavit and the statement of facts filed and served together with the application. The applicant filed a further supporting affidavit on 14. 11. 2016.

The 1st respondent opposed the application by filing the replying affidavit of Mary Rotich on 02. 09. 2016 through Timon Oyucho Advocate.

The parties agreed to rely on the written submissions.

As a preliminary consideration by the court, it has been submitted for the 1st respondent that the judicial review proceedings were commenced pursuant to Order 53 Rule 3 (1) of the Civil Procedure Rules, 2010 and section 8 and 9 of the Law Reform Act. It was submitted for the 1st respondent that under Order 53 Rule 2 of the Civil Procedure Rules leave shall not be granted to apply for an order of certiorari to quash a decision unless the application for leave is made not later than six months after the date of the proceedings or such shorter period as may be prescribed by any Act. It was submitted for the 1st respondent that the said Rule 2 reproduced section 9(3) of the Law Reform Act, Cap.26, Laws of Kenya. It was submitted that the leave application and the relevant supporting statutory statement of facts and prayers were filed on 14. 06. 2016 and the proceedings leading to the decision took place on 16. 11. 2016. Thus, the suit was filed 6 months and 14 days late after the lapsing of the prescribed limitation period of 6 months from the date of the proceedings subject of the judicial review proceedings. It was submitted that the 1st respondent relied uponRepublic –Versus- Kiambu Land Disputes Tribunal & 2 Others Ex-parte Wambui Chege Macaharia & 2 Others [2016]eKLR where it was held that applications for judicial review must be commenced within 6 months from the date when the ground for the application arose; the law does not state that the application be made from the date when the applicant became aware of the decision or when the decision was issued to the parties.

In view of the submissions made for the 1st respondent and which are not opposed, the court finds favour with the submissions and finds that the 1st prayer in the notice of motion was essentially a prayer for an order of certiorari and the suit with respect to that prayer was time barred. The court considers that as certiorari will not issue, all the other prayers being predicated upon granting of the order of certiorari, the other prayers and indeed the entire application will collapse. The court further returns that in the circumstances, it will not serve any practical purpose to delve into the other issues in dispute in the suit.

While making that finding the court has considered that the application for leave was filed on 14. 06. 16 and even if the court strictly follows that dates in the prayer, it is stated that the offending decision was conveyed in the letter dated 16. 12. 2015 and if the letter is taken to be the offending proceeding or decision, then the suit seeking the order for certiorari should have been filed on or before 16. 06. 2015. In that case, the suit was 2 days late.

The court observes that the point on lapsing of the limitation period was raised belatedly in the final submissions and therefore each party shall bear own costs of the proceedings.

In conclusion, the notice of motion filed for the applicant on 29. 06. 2016 is hereby dismissed with orders that each party shall bear own costs of the proceedings.

Signed, datedanddeliveredin court atNyerithisFriday, 17th March, 2017.

BYRAM ONGAYA

JUDGE