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|Case Number:||Petition 42 of 2019|
|Parties:||Kenya Vision 2030 Delivery Board v Commission on Administrative Justice & 2 others|
|Date Delivered:||24 Mar 2021|
|Court:||Supreme Court of Kenya|
|Judge(s):||Isaac Lenaola, Mohammed Khadhar Ibrahim, Philomena Mbete Mwilu, Smokin Charles Wanjala, Njoki Susanna Ndungu|
|Citation:||Kenya Vision 2030 Delivery Board v Commission on Administrative Justice & 2 others (Petition 42 of 2019)  KESC 35 (KLR) (24 March 2021) (Judgment)|
|Case History:||Being an appeal from the Judgment of the Court of Appeal at Nairobi (Nambuye, Kiage & Murgor) in Civil Appeal No. 141 of 2015 delivered on 27th September 2019)|
|History Docket No:||Civil Appeal 141 of 2015|
|History Judges:||Agnes Kalekye Murgor, Patrick Omwenga Kiage, Roselyn Naliaka Nambuye|
Recommendations made by the Commission on Administrative Justice to public bodies are not binding
The 3rd respondent was employed under a three-year employment contract by the Kenya Vision 2030 Delivery Board (the Board) in the position of Director (Enablers and Macro). The contract was renewable six months before its expiry. The 3rd respondent's employment contract was not renewed on grounds that his performance was below par. The 3rd respondent appealed to the Minister for Planning and National Development and Vision 2030 (the Minister). The Minister renewed his contract for a year but the Board declined to allow him back to work.
The 3rd respondent then sought the assistance of the Commission on Administrative Justice (CAJ). The conclusions of CAJ were that the Board violated articles 47 and 59 of the Constitution of Kenya, 2010 (Constitution) as well as sections 2 and 8(a), (b), and (d) of the Commission on Administrative Justice Act (CAJA) on fair administrative action. CAJ recommended the Board to pay the respondent the equivalent of twelve months' salary and allowances in compensation for the one-year period of the reviewed contract, to allow the 3rd respondent to collect his personal effects from his former office and offer him an unconditional apology for how they had treated him. The Board declined to implement the recommendations and CAJ filed judicial review proceedings at the High Court.
The High Court's findings were that it could not compel the implementation of CAJ's recommendations and that the only thing that CAJ could do when an organization failed to implement its recommendations was to make a report to the National Assembly which would take appropriate action under section 44(4) of the CAJA. Generally, the High Court stated that since CAJ lacked coercive power to compel the implementation of its recommendations, the court could also not compel a Government agency to implement the recommendations. An exception to those rules which would allow the court to compel the implementation of such recommendations was where there was a gross abuse of discretion, manifest injustice or palpable excess of authority equivalent to a denial of a settled right to which the petitioner was entitled, and there was no other plain, speedy and accurate remedy. An appeal was lodged against the High Court's decision.
The Court of Appeal allowed the appeal and granted the orders of mandamus as sought and also monetary compensation for violation of fair administrative action rights. The Court of Appeal stated that CAJ's options in situations where its recommendations were not implemented were not limited to reporting to the National Assembly. It explained that article 254 of the Constitution did not suggest that recommendations had no force of law or were incapable of enforcement by a court of law.
i. Whether the recommendations of the Commission on Administrative Justice were binding on public bodies.
ii. Whether the Court of Appeal had jurisdiction to award damages in a judicial review appeal, where the damages were a remedy sought for a failure to implement the recommendations of the Commission on Administrative Justice.
iii. Who bore the burden of proof in cases of abuse of discretion by public officers where exceptional circumstances were pleaded?
1. Section 5 of CAJA implied that the powers conferred upon CAJ were in addition to the power of commissions in article 253 of the Constitution. Like any other constitutional commission, CAJ was required as soon as practicable, after the end of each financial year, to submit a report to the President and to Parliament. It was wrong for the Court of Appeal to conclude that the report required under article 254(1) of the Constitution was different from reporting on its investigative reports made in the discharge of its mandate.
2. A reading of section 8 of CAJA which set out the functions of CAJ indicated that CAJ was mandated to investigate complaints of abuse of power, unfair treatment, manifest injustice or unlawful, oppressive, unfair or unresponsive official conduct within the public sector. Therefore, CAJ had the mandate to entertain and make recommendations with regard to the 3rd respondent's complaint.
3. Section 29 of CAJA provided that after investigating a complaint about how administrative action had been undertaken by a public officer or public body, CAJ was under a mandatory obligation to resolve the complaint through conciliation, mediation or negotiation. If the matter could not be resolved, and CAJ found that administrative action was undertaken unjustly or unreasonably, CAJ would make recommendations as it deemed fit.
4. Whereas CAJ had the requisite mandate to make recommendations to public officers or public bodies, the recommendations were not binding. A recommendation could only be binding when its binding nature was specifically provided for under the Constitution or the law. Neither the Constitution nor CAJA provided that CAJ's recommendations were binding. Consequently, the Board had the discretion to determine the manner in which they were to implement CAJ's recommendations.
5. Under section 42(4) of the CAJA, the remedy where there had been non-compliance with the recommendations of the CAJ, was for the CAJ to prepare a report of the Board’s failure to implement the recommendations to the National Assembly for appropriate action. Not even a court of law could dictate the manner in which a CAJ recommendation should be implemented. The only exception was where there was a gross abuse of discretion, manifest injustice or palpable excess of authority equivalent to a denial of a settled right to which the aggrieved party was entitled and there was no other plain, speedy and accurate remedy. The 3rd respondent's circumstances did not fall within the exception.
6. Where exceptional circumstances were pleaded, the party aggrieved by the alleged abuse of discretion by a public officer, had to prove that the exceptional circumstances existed. The 3rd respondent did not discharge that burden of proof.
7. The following were the guiding principles on recommendations from commissions to public bodies: -
8. Since CAJ's recommendations were not binding on the Board, there was no basis for the Court of Appeal to award monetary compensation to the 3rd respondent.
9. Under section 8(c) of the CAJA, CAJ had the mandate to award compensation but that provision should not be read in isolation. Section 41 of CAJA provided for options that CAJ had after the conclusion of an inquiry. They included referring the matter to the relevant authority (which included the National Assembly) or recommending to the 3rd respondent a course of other judicial redresses, recommending to the complainant appropriate methods of settling the complaint or obtaining relief and providing a copy of the inquiry report to all interested parties or submitting summons as it deemed fit to fulfill its mandate.
10. Since the dispute was an employer-employee dispute, CAJ ought to have recommended to the 3rd respondent an appropriate method of settling the dispute. One of those methods would be to seek redress at the Employment and Labour Relations Court (ELRC).
11. CAJ could not usurp the role of the ELRC over employment disputes and award compensation. CAJ, under section 8(g) of the CAJA, could only recommend compensation or other appropriate remedies against a person or bodies to which the Act applied.
|Case Outcome:||Appeal allowed.|
|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|