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ELRCPartially AllowedNot stated in the judgment (Notice of Motion filed 24th November 2014)· [2015] KEELRC 236 (KLR)

Fredrick Odhiambo Ndede v Makueni County Public Service Board & another [2015] KEELRC 236 (KLR)

Employment and Labour Relations Court (Industrial Court)
8 October 2015
MMM. Mbaru
2,897 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered Makueni County to keep paying a suspended officer's salary, ruling that suspending a public officer without pay for years violates the Constitution.

What this practically means

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Executive summary

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The Claimant, formerly Town Clerk of Makueni County Council, was deployed by the Transitional Authority on 25th February 2013 as interim County Secretary of the County Government of Makueni. On 15th May 2013 the 2nd Respondent suspended him pending investigations into the expenditure of about Kshs.132 million from the Local Authority Trust Fund, and his salary ceased. In November 2014 he moved the Court under the Industrial Court Act and the Court Rules seeking temporary and mandatory injunctions restraining his termination without due process, payment of his salary from June 2013, and costs. The Respondents opposed, arguing the application was improperly brought, had been overtaken by events, was statute-barred, that the Claimant was never their employee, and that the 2nd Respondent was entitled to suspend him over suspected fraud. The court held the claim was not time-barred because the suspension and non-payment constituted a continuing injury under section 90 of the Employment Act. It found that on deployment the Claimant remained a public officer protected by Article 236(b) of the Constitution and that the 2nd Respondent had no mandate to suspend or discipline him suo motu without the involvement of the 1st Respondent and the Public Service Commission framework under sections 58, 61 and 77 of the County Government Act. Suspension without pay for over two years, with no evidence of concluded investigations, violated Article 28. The court declined the interlocutory injunctions as matters for full trial but ordered payment of all unpaid salaries from June 2013 unconditionally until final determination, with costs to the Claimant.

Key legal issues

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01

Limitation/whether the suit is overtaken by time

Holding

The claim is not statute-barred as the suspension was continuing and salaries stopped, engaging section 90 of the Employment Act on continuing injury.

Reasoning

The Respondents argued the suit filed in November 2014 was out of time given the suspension of May 2013. The court held that the suspension had never been lifted and the non-payment of salary was an ongoing injury, so under section 90 of the Employment Act, which carves out continuing injuries from the Limitation of Actions Act, the claim was filed within the requisite time.

p. 4
02

Employment status and who may discipline the Claimant

Holding

The Claimant remained a public officer and employee entitled to due process; the 2nd Respondent had no mandate to suspend or discipline him suo motu without reference to the 1st Respondent and the Public Service Commission framework.

Reasoning

Relying on section 58 of the County Government Act and the Timothy Omollo case, the court found that staff deployed to county governments upon the elections became subject to the county public service structures, with discipline governed through the County Public Service Board and linked to the Public Service Commission under section 77. The 2nd Respondent acting alone on allegations predating its existence denied the Claimant due process under Article 236(b).

p. 4
03

Degrading treatment and payment of salaries pending hearing

Holding

Suspension without pay for over two years without concluded investigations violated Article 28; the Claimant's salaries must be paid unconditionally pending the hearing.

Reasoning

The suspension letter promised reinstatement if the Claimant was found blameless, but over two years later no evidence showed the investigations had been undertaken or concluded. Leaving him in abeyance without salary amounted to degrading treatment; restoring his salary pending the suit restored his dignity and was a proper interim measure.

p. 5

Legal principles established

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  • A public officer may not be dismissed, removed, demoted or subjected to disciplinary action without due process of law, even where deployed on an interim basis.
  • Employment claims involving continuing injury fall outside the limitation bar and remain justiciable under section 90 of the Employment Act.
  • Indefinite suspension without pay for over three months without hearing constitutes degrading treatment contrary to Article 28 of the Constitution, justifying payment of salaries pending hearing.

Court orders

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  1. 1.Pending the hearing and determination of the claim, the Claimant shall be paid all salaries due and unpaid from June 2013 to date, and such salaries shall continue to be paid unconditionally until final determination of the suit
  2. 2.Costs awarded to the Claimant
  3. 3.Prayers one (1) and two (2) (interlocutory injunctions against termination/dismissal) shall not issue until the final hearing

Authorities

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Legislation

  • Industrial Court Act [Employment and Labour Relations Court Act]Sections 3, 12(1)(i) and (ii)
  • Employment and Labour Relations Court (Procedure) RulesRules 16(1), (2) and (3)
  • Constitution of Kenya, 2010Articles 28, 41, 47, 50, 236(a) and (b)
  • County Government ActSections 44(2), 58, 61, 77, 138(5)
  • Employment ActSection 90
  • Limitation of Actions ActSection 4(1)

Cases cited (2)

  • Timothy Omollo & 78 Others versus Kakamega County Government & Another
    Cause No. 182 of 2013
  • Giella versus Cassman Brown
    [1969] EA
Jurisdiction invoked
Sections 3, 12(1)(i) and (ii) of the Industrial Court Act (Employment and Labour Relations Court Act), Rule 16(1) and (2) of the Court Rules, and Articles 41, 47 and 50 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Fredrick Odhiambo Ndede v Makueni County Public Service Board & another [2015] KEELRC 236 (KLR)", Case Analysis (2015). Not stated in the judgment (Notice of Motion filed 24th November 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/236/eng@2015-10-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.