Kwale County Assembly Service Board & 6 others v Dzila (Civil Appeal E102 of 2022) [2024] KECA 945 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed employers can suspend an employee on full pay to investigate misconduct without a hearing, as long as the suspension isn't punishment.
What this practically means
#Executive summary
#Key legal issues
#Interpretation of 'suspend or remove' in section 22 of the County Assembly Service Act
The trial judge misconstrued section 22; 'suspend' does not mean 'remove'. Suspension and removal are distinct disciplinary actions, the word 'or' being disjunctive, and section 23 prescribes a procedure only for removal.
The court applied text-and-context and purposive canons of interpretation. Section 22 specifies two forms of disciplinary action but lays down no procedure for suspension, whereas section 23 prescribes an elaborate procedure for removal. The disjunctive 'or' confirms two distinct options. Accordingly the trial judge's declaration that 'suspend' means 'remove' was wrong and was set aside.
Whether a hearing was required before issuing a holding suspension
No. The suspension issued was a holding suspension on full pay pending investigations, an administrative action for which natural justice does not at that stage require a hearing.
Drawing on Quirke, Gradwell, Deegan, Lewis v Heffer and local authority, the court distinguished punitive suspensions from holding suspensions. The suspension letter stated reasons, a 60-day period and full pay pending investigations, and did not find guilt. Since section 22 prescribes no procedure for suspension, a hearing at the point of issuing a holding suspension was unnecessary and impractical.
Whether the suspension and notice to show cause violated articles 232 and 236 of the Constitution
No violation was demonstrated; the ground was unfounded.
Article 236(b) protects public officers from disciplinary action without due process of law. The court found that the pleadings and proceedings did not show how constitutional provisions were breached or how due process was not followed, and therefore the cross-appeal ground failed.
Reasonable apprehension of bias against the Board
Bias was not established; the trial judge rightly dismissed the allegation.
Applying the two-step test from Judicial Service Commission v Shollei, the court found that the perception of bias must be based on established facts. The respondent had not yet appeared before the Board for removal hearings, and no bias or inference of bias in the conduct of the Board's members was demonstrated.
Apportionment of costs at 50:50
Correct; costs follow the event but the award is discretionary, and each party succeeded in part.
Guided by Jasbir Singh Rai v Tarlochan Singh Rai, the court held that the 'costs follow the event' rule is not invariable and the ultimate factor is judicial discretion. Since part of the respondent's claim succeeded and the appellants also succeeded in part, the trial judge could not be faulted for awarding half the costs to each side.
Legal principles established
#- Suspension and removal under section 22 of the County Assembly Service Act are separate and distinct disciplinary processes, not one and the same sanction
- A holding (administrative) suspension pending investigations, on full pay, does not require a hearing under the rules of natural justice before it is issued
- Where a suspension letter states reasons, a fixed period of 60 days with full pay pending investigations, and does not adjudge guilt, it is a holding suspension and not a punitive suspension
- An appellate court should only interfere with trial court findings where the decision is based on no evidence, a misapprehension of the evidence, or wrong principles
Court orders
#- 1.The declaration by the trial judge that 'suspend' in section 22 of the County Assembly Service Act means 'remove' be and is hereby set aside
- 2.The cross appeal is without merit and is hereby dismissed
- 3.Costs of the appeal and cross appeal to the appellants
- On appeal from
- Employment and Labour Relations Court
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal (duty to re-evaluate evidence as a first appellate court)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Munguti v Ardhi Sacco Society (Cause E529 of 2024) [2025] KEELRC 2630 (KLR)[2025] KEELRC 2630 (KLR)29 Sept 2025followed
- Kenya Chemical Workers Union v Silafrica Limited (Cause E074 of 2021) [2025] KEELRC 1205 (KLR)[2025] KEELRC 1205 (KLR)30 Apr 2025followed
Cite this brief
#Cite this brief
Caselaw, "Kwale County Assembly Service Board & 6 others v Dzila (Civil Appeal E102 of 2022) [2024] KECA 945 (KLR)", Case Analysis (2024). Civil Appeal No E102 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/945/eng@2024-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.