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ELRCDismissedCause No 210 of 2015· [2015] KEELRC 351 (KLR)

Evans Wafula Makokha v Uasin Gishu County Public Service Board [2015] KEELRC 351 (KLR)

Employment and Labour Relations Court
30 October 2015
RSRadido Stephen
1,662 words in judgment
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The bottom line

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Kenya's Employment Court refused to stop a county worker's disciplinary process, ruling courts intervene only in exceptional cases where employees show grave injustice and no other remedies exist.

What this practically means

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Executive summary

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The applicant, a Laboratory Technologist with the Uasin Gishu County Public Service Board and Chairman of the Kenya County Government Workers Union, Uasin Gishu Branch, was interdicted on 15 June 2015 over alleged absenteeism between January 2014 and February 2015. He filed a Memorandum of Claim together with a motion seeking six interlocutory orders, contending that the interdiction was unfair, unprocedural, malicious and actuated by his union activities, and contrary to the Constitution, international labour conventions, various statutes and the audi alteram partem rule. The Respondent opposed, arguing that interdiction is an intermediate disciplinary step, that no hearing is required before interdiction, and that the applicant had not met the threshold for mandatory interlocutory orders. The Court, through Radido J, restated its jurisprudence on intervention in disciplinary processes: the Court has jurisdiction but should intervene only in exceptional circumstances where compelling reasons, such as grave injustice and lack of alternative remedies, are shown. The Court found that a Collective Bargaining Agreement incorporated the Public Service Commission (Local Authority Officers) Regulations, giving the Respondent contractual and statutory authority to interdict. The applicant was found to have effective remedies should the process result in unfair termination. The motion was dismissed with costs to the Respondent, and the Respondent was directed to file its Response, witness statements and documents within 14 days.

Key legal issues

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01

Whether the Court should interdict the employer's disciplinary process at the interlocutory stage

Holding

The motion was dismissed; intervention requires exceptional circumstances and compelling reasons, which the applicant failed to demonstrate.

Reasoning

The Court reviewed case law establishing that while it has jurisdiction to intervene in disciplinary processes, such intervention should be reluctant and confined to compelling or exceptional cases, such as where grave injustice would result and no alternative remedies exist. The applicant still had effective remedies, including reinstatement and compensation, should the disciplinary process culminate in unfair termination. The employer also had contractual and statutory authority under the applicable Regulations, incorporated via the CBA, to interdict the applicant pending investigations.

p. 3
02

Whether the Respondent had authority to interdict the applicant

Holding

Yes - the CBA incorporated the Public Service Commission (Local Authority Officers) Regulations, which conferred contractual and statutory authority to interdict.

Reasoning

A Collective Bargaining Agreement between the applicant's Union and the Association of Local Government Employers provided that Regulation 23 of the Public Service Commission (Local Authority Officers) Regulations on discipline applies. Regulations 23 and 24 empower interdiction where proceedings which may lead to dismissal or criminal proceedings are taken. Accordingly, the Respondent had both contractual and statutory authority to interdict the applicant pending investigations into alleged absenteeism.

p. 3

Legal principles established

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  • The Court has jurisdiction to intervene in an employer's disciplinary process, but only in very exceptional cases where compelling reasons are shown, such as grave injustice and absence of alternative remedies.
  • Suspension or interdiction of an employee must have a contractual or statutory basis; without such authority unilateral suspension would constitute breach of contract.

Court orders

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  1. 1.The motion is dismissed with costs to the Respondent
  2. 2.The Respondent is to file its Response, witness statements and documents to the main Cause within the next 14 days

Authorities

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Legislation

  • Employment Actsection 41
  • Labour Relations ActNot specified
  • Urban Cities Act, 2011Not specified
  • County Governments Act, 2012Not specified
  • Constitution of Kenya, 2010Not specified
  • Public Service Commission (Local Authority Officers) RegulationsRegulations 23 and 24
  • Collective Bargaining Agreement (Kenya County Government Workers Union and Association of Local Government Employers)effective 1 September 2012

Cases cited (8)

  • Kenya Plantation & Agricultural Workers Union v Finlays Horticultural Kenya Ltd
    (2015) eKLR
  • McKenzie v Smith
    (1976) IRLR 345
  • Miguna Miguna v Permanent Secretary, Office of the Prime Minister
  • The Post Office v Strange
    (1981) IRLR 515
  • Rebecca Ann Maina & 2 Ors v Jomo Kenyatta University of Agriculture and Technology
    (2014) eKLR
  • Joseph Mutura Mberia & Ar v Council of Jomo Kenyatta University of Agriculture and Technology (JKUAT)
    (2013) eKLR
  • Aviation & Allied Workers Union v Kenya Airways Ltd
    (2012) eKLR
  • Booysen v The Minister of Safety and Security & Or
    (2011) 1 BLLR 83 (LAC)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution and the Employment and Labour Relations Court Act (not expressly cited; the Cause concerns employment and a disciplinary process against a county public officer)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Evans Wafula Makokha v Uasin Gishu County Public Service Board [2015] KEELRC 351 (KLR)", Case Analysis (2015). Cause No 210 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/351/eng@2015-10-30

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