Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCAllowedNot stated in the extract· [2015] KEELRC 1472 (KLR)

Donald C. Avude v Kenya Forest Service [2015] KEELRC 1472 (KLR)

Employment and Labour Relations Court
26 January 2015
MOMaureen Onyango
3,652 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

#

A Kenyan employer cannot suspend an employee without pay indefinitely just because criminal charges were filed — the Employment and Labour Relations Court lifted the suspension and ordered back pay.

What this practically means

#

Executive summary

#
The claimant, an Assistant Director Grade 5 employed by the respondent (Kenya Forest Service) as Ecosystem Conservator at Lamu, was arrested on 9th April 2014 and charged before the Senior Principal Magistrate's Court, Mpeketoni with creating a disturbance, offensive conduct and resisting arrest under the Penal Code. He was suspended from duty on 16th April 2014 by a letter also requiring him to show cause within 14 days why his services should not be dispensed with. The claimant filed a claim and a notice of motion seeking lifting of the suspension, reinstatement, payment of withheld emoluments and an injunction against termination, arguing that the respondent's Human Resource Manual made no provision for suspension, that the charges were unconnected to his employment, and that being required to show cause would amount to self-incrimination contrary to Article 50(2)(c) of the Constitution. The respondent defended the suspension as a disciplinary measure for utterances breaching its Manual, the Constitution and the Public Officers Ethics Act. The court held that being charged with a criminal offence alone is not a ground for dismissal under Section 44(4)(f) and (g) of the Employment Act; that Clause 10.16.4 of the respondent's Manual permitting unpaid, indeterminate suspension upon any criminal charge contravened Article 41(1) of the Constitution and Sections 41 and 44 of the Employment Act; that the disciplinary process was premature, especially as the respondent had endorsed that discipline should await the outcome of the criminal case; and that the charges were unconnected to the employment. The court allowed the application, lifted the suspension and disciplinary process, directed the claimant to resume duty at Lamu within 7 days, ordered release of withheld emoluments forthwith, and awarded the claimant costs of the application.

Key legal issues

#
01

Whether criminal charges unconnected to employment can ground disciplinary action

Holding

They cannot; disciplinary action is premature where the criminal charges are unconnected with the employee's employment and the employer has not demonstrated any infringement of the Constitution or the Public Officers Ethics Act

Reasoning

Section 44(4)(f) and (g) of the Employment Act permits dismissal only where the employee is not released on bail within 14 days or commits an offence against or to the substantial detriment of the employer. The charges against the claimant were misdemeanours unlikely to attract custodial sentences, occurred away from the respondent's premises, and the respondent failed to specify the constitutional or Public Officers Ethics Act provisions infringed or demonstrate how the charges related to the claimant's obligations.

p. 6
02

Whether the respondent's Manual clause on suspension was lawful

Holding

The clause permitting suspension without salary upon any criminal charge, for an indeterminate period, was unconstitutional and contrary to the Employment Act

Reasoning

Clause 10.16.4 of the respondent's Manual allowed suspension upon being charged with any offence, including minor offences like traffic offences, without salary and for an indeterminate period. The court held this contravened Article 41(1) of the Constitution and Sections 41 and 44 of the Employment Act, and that suspension without pay must be for a determinate period to avoid inhuman treatment.

p. 6
03

Whether the interlocutory orders sought should issue despite the caution against granting final relief at interlocutory stage

Holding

The court granted the substantive orders because the disciplinary process had no legal basis and withholding salary would cause irreparable financial hardship

Reasoning

The court rejected the respondent's argument that withheld emoluments are compensable and that courts should not interfere with employer discipline. Withholding salary exposes the employee to financial embarrassment not remediable by later release of the salary, and the disciplinary process was premature and without legal basis, justifying intervention.

p. 6

Legal principles established

#
  • Being charged with a criminal offence alone is not a ground for dismissal or disciplinary action under Section 44(4)(f) and (g) of the Employment Act unless the employee is not released within 14 days or the offence is against or to the substantial detriment of the employer
  • A contractual or manual provision permitting unpaid, indeterminate suspension upon any criminal charge contravenes Article 41(1) of the Constitution and Sections 41 and 44 of the Employment Act
  • A court will intervene in an employer's disciplinary process where non-interference would cause extreme hardship or where the action has no legal basis
  • Suspension without pay should only be for a determinate period, failing which it amounts to inhuman treatment

Court orders

#
  1. 1.The disciplinary process against the claimant/applicant and the resultant suspension is lifted; the claimant is directed to resume duty at his station in Lamu within 7 days from the date of the ruling
  2. 2.The respondent is directed to release the claimant's emoluments withheld as a result of the suspension forthwith
  3. 3.The respondent shall pay the claimant's costs for this application

Authorities

#

Legislation

  • Employment ActSections 41, 44, 44(4)(f), 44(4)(g)
  • Constitution of Kenya, 2010Articles 10, 41(1), 50(2)(c), 232, 260, Chapter 6
  • Penal CodeSections 94(1), 95(1), 253(b)
  • Public Officers Ethics ActSections 9(b), 16(2), 20(1)
  • Public Service Code of RegulationsNot specified

Cases cited (6)

  • Cabiakman V Industrial Alliance Life Insurance Co.
    [2004] 3 S.C.R. 195, 2004 SCC 55
  • Shaw V DPP
    [1962] AC 220 HL
  • Ismail Hassan Abdullahi V Kenya Ports Authority
  • Dennis Nyagaka Ratemo V The Kenya Film Commission & Peter Mutie
  • Prof. Gitile Naituli V University Council of Multimedia University College & Another
  • Alfred Nyungu Kimungui V Bomas of Kenya
Jurisdiction invoked
Employment and labour relations jurisdiction of the Employment and Labour Relations Court under Article 162(2) of the Constitution (implied from the subject matter); claim brought under the Employment Act, 2007 and Article 41(1) of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (25)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Donald C. Avude v Kenya Forest Service [2015] KEELRC 1472 (KLR)", Case Analysis (2015). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1472/eng@2015-01-26

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