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Kenya - Court of Appeal declares Ombudsman decisions binding

2019/10/02 03:20:59 PM

A three judge bench of the Court of Appeal has ruled that the determinations and recommendations of the Commission on Administrative Justice, also known as Office of the Ombudsman, have the force of law hence are binding on public institutions. The landmark decision was made on 26th September 2019.

This follows an appeal by the Commission of a judgment by High Court Judge Weldon Korir in February 2015. The case arose out of a complaint by Eng. Judah Abekah lodged with the Commission on 21st August 2012. According to Eng. Abekah, he was employed as the Director (Enablers and Macro) at the Vision 2030 Delivery Secretariat Board and upon the expiry of his contract after three years, he unsuccessfully applied for a renewal. Subsequently, he appealed to the Minister of Planning, National Development and Vision 2030 who renewed his contract for one year in March 2012. However, upon receiving the letter, the Director General of the Board, Dr. Mugo Kibati, refused to forward the letter to Eng. Abekah insisting that he had to handover and exit the Board. 

Having unsuccessfully appealed for his matter to be reconsidered by the Board, Eng. Abekah lodged a complaint with the Commission. The Commission considered the matter extensively and determined that the Board should:

i.) pay Eng. Abekah an equivalent of twelve months’ salary and allowances in compensation for the one-year period of the renewed contract;

ii.) facilitate Eng. Abekah to access his personal effects from his former office; and
iii.) offer an unconditional apology to Eng. Abekah for the mistreatment meted out to him.

The Board failed to implement the determination of the Commission which prompted Eng. Abekah to move to the High Court for enforcement of the decision. The Commission appeared in the matter as an Interested Party. Having considered the matter, the High Court dismissed the case on the basis that the determination of the Commission could not be enforced through judicial review and that the Board was not under any obligation to implement the determination of the Commission. In other words, Judge Weldon Korir ruled that the determination of the Commission did not have the force of law thus not binding. He further ruled that the only remedy available to the Commission upon failure to implement its determinations was to report to the National Assembly for action.

Being dissatisfied with the decision of the High Court, the Commission appealed to the Court of Appeal. In their judgment of 26th September 2019, justices Roselyn Nambuye, Patrick Kiage and Agnes Murgor found as follows:

i. the Commission complements the judiciary in providing a platform for redress of administrative injustices as per Article 22(1) of the Constitution;
ii. the enforcement of the determinations or recommendations of the Commission is not limited to reporting to the National Assembly;
iii. the determinations and the recommendations of the Commission have the force of law and can be enforced in a court of law hence they are binding; public institutions and officers have no latitude to choose whether to comply or not in the absence of an appeal;
iv. a beneficiary of the determinations of the Commission can seek enforcement in court through judicial review proceedings;
v. the Board had demonstrated gross abuse of discretion, manifest injustice and acted unlawfully in failing to avail the renewed contract to Eng. Abekah and refusing to allow him to access his office to remove his personal effects; and

vi. the determination of the Commission was sound and well founded in law and facts of the matter.

In light of this, the Court proceeded to confirm the determination of the Commission which included payment of 12 months’ salary as compensation to Eng. Abekah in lieu of the renewal of the one-year contract which had been declined, allowing him to collect his personal effects from the office and to offering an apology to him for unfair treatment. To this end, the Court of Appeal issued mandamus orders to compel the Board to implement the determination of the Commission. In addition, the Court awarded Eng. Abekah Sh700,000 as compensation for infringement of his right to fair administrative action with accrued interest from the date of the High Court judgment on 26th February 2015 and costs both at the High Court and the Court of Appeal. 

The Court of Appeal in Kenya is one of the few courts that have made such a ruling in Africa. Similar decisions have been made by the Supreme and Constitutional Courts of South Africa.

Appeal judgement no. 141 of 2015-2

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