Case Metadata |
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| Case Number: | Judicial Review Miscellaneous Application 9 of 2019 |
|---|---|
| Parties: | Kenya Medical Practitioners, Pharmacists & Dentists Union, Ayub Gitaka, Boniface Miringu, Frank Buya, Margaret Mukuhi, Samuel Wanjohi, Seth Jomo, Solomon Kirugo, Solomon Tyaa, Abdisalam Mutaj, Alex Gitau, Alice Wangari Gitau, Andrew Mutua, Anthony Muturi, Anthony Ndei, Appolo Kinga, Bernard Odhiambo, Bette Adhiambo, Brian Imbova, Caesar Makara Kanyango, Catherine Nyambura, Charles Collins, Cynthia Ruwa, Cyrus Ng'ang'a Njoroge, Dennis Ng'ang'a,Diana Marion, Edwin Maina Mwangi, Edwin Ondicho, Elizabeth Muthoni, Elizabeth Wambui, Emily Muthoni, Eric Gachathi, Esbon Wambugu, Esther Wairimu, Eunice Nyambura, James Wagura, John Omendo, Joram Mwangi Muchiri, Joseph Asere, Joseph Simel, Joseph Tabalya Musamia, Julia Theuri, Justus Wambugu, Kenneth Kingori, Kilonzo Sammy, Lydia Kavochi Iladiva, Martin Wanjohi,Mary Khasiala Muhalia, Maryanne Njeri, Mercy Kinya, Nancy Nkatha, Osano Nyanga, Patience Nandwa,Patrick Njuguna, Paul Gascoigne, Sheila Wanjir, Stephen Charagu, Tobi Wamai, Tony Juma, Vincent Gilbert, Vincent Wambugu & Winnie Wanjiru v County Government of Laikipia & Laikipia County Public Service Board; Public Service Commission (Interested Party) |
| Date Delivered: | 19 Oct 2020 |
| Case Class: | Civil |
| Court: | Employment and Labour Relations Court at Nyeri |
| Case Action: | Ruling |
| Judge(s): | Nzioki wa Makau |
| Citation: | Kenya Medical Practitioners, Pharmacists & Dentists Union & 61 others v County Government of Laikipia & another; Public Service Commission (Interested Party) [2020] eKLR |
| Court Division: | Employment and Labour Relations |
| County: | Nyeri |
| Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS
COURT OF KENYA AT NYERI
JUDICIAL REVIEW MISCELLANEOUS APPLICATION NO. 9 OF 2019
IN THE MATTER OF: AN APPLICATION FOR LEAVE TO COMMENCE JUDICIAL REVIEW PROCEEDINGS
AND
IN THE MATTER OF: AN APPLICATION FOR JUDICIAL REVIEW FOR ORDERS OF CERTIORARI, PROHIBITION AND MANDAMUS
AND
IN THE MATTER OF: SECTION D.20, D.28 & D.29 OF THE PUBLIC SERVICE COMMISSION OF KENYA; COUNTY PUBLIC SERVICE HUMAN RESOURCE MANUAL
AND
IN THE MATTER OF: ARTICLE 41 & 47 OF THE CONSTITUTION OF KENYA 2010, THE FAIR ADMINISTRATIVE ACTIONS ACT, 2015
AND
IN THE MATTER OF: SECTION 74 OF THE PUBLIC SERVICE COMMISSION ACT, 2017
AND
IN THE MATTER OF: SECTION 3(5) OF THE INTERPRETATION AND GENERAL PROVISIONS ACT AND SECTION 3(1)(A)(I) OF THE KENYA INFORMATION AND COMMUNICATIONS (POSTAL AND COURIER SERVICES) REGULATIONS, 2010
BETWEEN
1. KENYA MEDICAL PRACTITIONERS, PHARMACISTS & DENTISTS UNION
2. DR. AYUB GITAKA
3. DR. BONIFACE MIRINGU
4. DR. FRANK BUYA
5. DR. MARGARET MUKUHI
6. DR. SAMUEL WANJOHI
7. DR. SETH JOMO
8. DR. SOLOMON KIRUGO
9. DR. SOLOMON TYAA
10. DR. ABDISALAM MUTAJ
11. DR. ALEX GITAU
12. DR. ALICE WANGARI GITAU
13. DR. ANDREW MUTUA
14. DR. ANTHONY MUTURI
15. DR. ANTHONY NDEI
16. DR. APPOLO KINGA
17. DR. BERNARD ODHIAMBO
18. DR. BETTE ADHIAMBO
19. DR. BRIAN IMBOVA
20. DR. CAESAR MAKARA KANYANGO
21. DR. CATHERINE NYAMBURA
22. DR. CHARLES COLLINS
23. DR. CYNTHIA RUWA
24. DR. CYRUS NG'ANG'A NJOROGE
25. DR. DENNIS NG'ANG'A
26. DR. DIANA MARION
27. DR. EDWIN MAINA MWANGI
28. DR. EDWIN ONDICHO
29. DR. ELIZABETH MUTHONI
30. DR. ELIZABETH WAMBUI
31. DR. EMILY MUTHONI
32. DR. ERIC GACHATHI
33. DR. ESBON WAMBUGU
34. DR. ESTHER WAIRIMU
35. DR. EUNICE NYAMBURA
36. DR. JAMES WAGURA
37. DR. JOHN OMENDO
38. DR. JORAM MWANGI MUCHIRI
39. DR. JOSEPH ASERE
40. DR. JOSEPH SIMEL
41. DR. JOSEPH TABALYA MUSAMIA
42. DR. JULIA THEURI
43. DR. JUSTUS WAMBUGU
44. DR. KENNETH KINGORI
45. DR. KILONZO SAMM
46. DR. LYDIA KAVOCHI ILADIVA
47. DR. MARTIN WANJOHI
48. DR. MARY KHASIALA MUHALIA
49. DR. MARYANNE NJERI
50. DR. MERCY KINYA
51. DR. NANCY NKATHA
52. DR. OSANO NYANGA
53. DR. PATIENCE NANDWA
54. DR. PATRICK NJUGUNA
55. DR. PAUL GASCOIGNE
56. DR. SHEILA WANJIRA
57. DR. STEPHEN CHARAGU
58. DR. TOBI WAMAI
59. DR. TONY JUMA
60. DR. VINCENT GILBERT
61. DR. VINCENT WAMBUGU
62. DR. WINNIE WANJIRU.................................................EX – PARTE APPLICANTS
VERSUS
THE COUNTY GOVERNMENT OF LAIKIPIA.............................1ST RESPONDENT
LAIKIPIA COUNTY PUBLIC SERVICE BOARD.........................2ND RESPONDENT
AND
PUBLIC SERVICE COMMISSION..............................................INTERESTED PARTY
RULING
1. The 1st Ex parte Applicant, in the main, seeks in its application dated 31st August 2020 that the Interested Party’s ruling of 12th August 2020 be deemed as filed and adopted as an order of the Honourable Court. Upon adoption of the Interested Party’s ruling of 12th August 2020 as an order of this Court, summons be issued to Karanja Njora, the County Secretary of the County Government of Laikipia, Dr. Donald Mogoi, the Acting County Chief Officer Medical Services and Public Health, County Government of Laikipia and Paul Njenga Waweru, the Acting County Chief Officer, Finance, County Government of Laikipia, to show cause why he should not be committed to civil jail for blatant disobedience of the Interested Party’s ruling of 12th August 2020 as adopted as an order of this Honourable Court. Additionally, it sought that the Respondents and the said Karanja Njora, Dr. Donald Mogoi and Paul Njenga Waweru be and are hereby denied further audience by this Honourable Court save for showing cause why they should jointly and/or severally not be committed to civil jail for such term as the Court may deem just for the blatant disobedience of the Interested Party’s ruling of 12th August 2020 as adopted as an order of this Court. The application was premised on grounds upon its face and is supported by the affidavit of Dr. Davji Bhimji Atella.
2. The Respondents were opposed and filed a replying affidavit sworn by Karanja Njora, the County Secretary Laikipia County Government. In brief he stated that the application is a non-starter as the orders sought cannot be granted. He deponed that the consent was reached on mutual agreement by all parties that this suit was wrongfully instituted in the first place and there was need to regularize. He stated that this suit was defective, void ab initio because for the Ex parte Applicants, the Interested Party was the first port of call. He deponed that it is not possible to seek additional orders within this suit as it is flawed and fatally defective ab initio. The Respondents assert that the enforcement orders can only be through an application in a fresh suit. The Respondents additionally argued that they were not accorded a fair hearing by the Interested Party thus impairing the decision it arrived at.
3. Pursuant to the Consent Order made on 15th October 2019, the 1st Ex Parte Applicant the Kenya Medial, Pharmacists & Dentists Practitioners Union on or about 25th October 2019, for and on behalf of the 61 Ex Parte Applicants herein, submitted to the Interested Party for Appeal the entire decision by the Respondents of the 21st June 2019 to summarily dismiss 34 of the 1st Ex Parte Applicant’s members. The Public Service Commission (PSC) on 12th August 2020 issued its final ruling to the 1st Ex Parte Applicant’s Appeal. It directed as follows:-
1) The decision of the Respondents to summarily dismiss the doctors listed in the appeal dated 25th October 2019, from the Laikipia County Service, is hereby set aside.
2) The doctors listed in the appeal dated 25th October 2019 are hereby reinstated to the positions that they held in the Laikipia County Public Service prior to the decision of the Respondents to summarily dismiss them on 21st June 2019.
3) The doctors listed in the appeal dated 25th October 2019 are not entitled to any remuneration and benefits between the period 3rd June and 20th June 2019 when they participated in a strike that was declared by court to be unlawful and unprotected.
4) The doctors listed in the appeal dated 25th October 2019 are entitled to all their remuneration and benefits, save as otherwise stated in this decision, in the same manner as other members of the appellant who were not terminated.
5) The respondents do pay the doctors listed in the appeal dated 25th October 2019 all and any withheld remuneration and benefits, save as ordered in this decision, up to and including the date that the Respondents shall reinstate them back to the County Public Service.
6) Upon reinstatement, the Respondents do continue to pay the doctors listed in the appeal dated 25th October 2019 in accordance with their terms and conditions of service.
4. The attack against the ex parte Applicant’s prayer for the adoption of the decision of the Public Service Commission decision of 12th August 2020 is this – the proceedings here are impugned on the basis that the procedure invoked was unlawful since the ex parte Applicant had moved the Court before first exhausting the remedy under the law which was what it did in the appeal to PSC. It is indeed true that the proceedings in this judicial review were attacked as being premature and in a swift about turn, the Ex parte Applicants sought to have the appeal against the decision of the Respondents at the Public Service Commission be heard and determined within 30 days effective 16th October 2019. This is the decision that ultimately was issued on 12th August 2020.
5. In my considered view, the Court not having determined that the proceedings were impaired, can the Court now adopt for action or as a court order the decision that was obtained after the ex parte Applicant sought the relief in the correct forum? I think so. The proceedings though challenged by the preliminary objection filed, a determination thereon was not made as the preliminary objection was compromised by way of a consent. The consent of the parties made no mention of the illegality of the proceedings before me or the alleged defect in the suit. It is clear the best course is to have the 1st Ex parte Applicant to make an application seeking enforcement by way of mandamus. In the premises as the orders sought in the first substantive prayer of the motion are in the nature of mandamus, I grant the motion by the 1st Ex parte Applicant in part to the extent that the Interested Party’s ruling of 12th August 2020 be and is hereby deemed as duly filed and adopted as an order of the Honourable Court. I accordingly direct and compel the Respondents by way of mandamus to commence implementation of the Ruling of the Public Service Commission dated 12th August 2020 bearing in mind the provisions of Section 89 of the Public Service Commission Act. There shall be no order as to costs.
It is so ordered.
Dated and delivered at Nyeri this 19th day of October 2020
Nzioki wa Makau
JUDGE
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