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ELRCDismissedPetition No. 24 of 2015· [2016] KEELRC 468 (KLR)

Musa Ogaro Osoro v Wilfred N. Gutwa & 3 others [2016] KEELRC 468 (KLR)

Employment and Labour Relations Court
15 September 2016
1,317 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court dismissed a Kisii county accountant's challenge to his suspension because his petition didn't specify which constitutional rights were violated and jumped the gun.

What this practically means

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Executive summary

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The Claimant, employed by the County Government of Kisii as Accountant 1 by letter dated 30th January 2014, was suspended by a letter of 1st October 2015 signed by the 1st Respondent, citing allegations that he had stolen Kshs.300,000 from Wakenya Pamoja Sacco while a former employee and had an outstanding loan of Kshs.901,497.94. The Claimant petitioned the Employment and Labour Relations Court seeking declarations that the suspension was illegal, that the 1st and 2nd Respondents usurped the powers of the County Public Service Board, an injunction, and an order quashing the suspension. He asserted the criminal case (Nyamira CM CR No.124 of 2013) had been concluded by his discharge on 29th April 2015 and that the Sacco acted maliciously. The Respondents did not file a response but submitted that the action followed the County Human Resource Manual, that the suspension required the Claimant to show cause and was later lifted with reinstatement and payment of withheld moneys, that the petition was premature, and that the 1st Respondent only conveyed a decision and should not have been sued personally. The court held that the petition failed to plead with particularity the constitutional provisions violated (applying Anarita Karimi Njeru), that it was premature and an abuse of process, that there were reasonable grounds for the suspension given allegations of financial impropriety, and that the Claimant's appointment while a criminal case was pending breached Chapter Six of the Constitution and section 65 of the County Governments Act. The petition was dismissed with costs on 15th September 2016.

Key legal issues

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01

Failure to plead constitutional violations with particularity

Holding

The petition was incompetent for failing to specify the constitutional provisions violated or threatened

Reasoning

The court noted that the petition did not set out which constitutional provisions were violated or threatened, nor did it describe the Respondents so the court could tell why the 1st and 2nd Respondents were enjoined or alleged to have usurped the Board's powers. Citing Anarita Karimi Njeru, the court held the petition incompetent on this ground.

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02

Prematurity of the petition

Holding

The petition was premature as the disciplinary process had just commenced and the internal appeal mechanism under section 55 of the County Governments Act had not been exhausted

Reasoning

The court observed that the letter of suspension required the Claimant to show cause within 14 days, that after his response the suspension was lifted and he was reinstated, and that section 55 of the County Governments Act requires a dissatisfied public officer to appeal to the Public Service Commission. Filing the petition at that stage was premature and an abuse of process.

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03

Reasonableness of the suspension

Holding

There were reasonable grounds to suspend the Claimant given the serious financial impropriety allegations made against him

Reasoning

The complaints raised by Wakenya Pamoja Sacco Society Limited involved serious financial impropriety incompatible with the Claimant's position as Accountant 1. The court further expressed surprise that he was appointed while a criminal case was pending, contrary to Chapter Six of the Constitution and section 65 of the County Governments Act, noting the discharge in the criminal case was not a determination on the merits.

p. 3
04

Power to suspend a county public officer

Holding

Section 76(6) of the County Governments Act permits the County Public Service Board or the concerned Chief Officer or other lawful authority to suspend a public officer

Reasoning

The court cited the County Governments Act provisions establishing the Board's mandate over county public offices and noted that section 76(6) expressly permits the Board, the Chief Officer or other lawful authority to interdict or suspend or take other interlocutory decisions against a public officer, which undermined the Claimant's usurpation argument.

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Legal principles established

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  • A constitutional petition must plead with particularity the provisions of the Constitution said to have been violated and the manner of violation

Court orders

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  1. 1.The petition is dismissed with costs

Authorities

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Legislation

  • County Governments Actsection 76(6)
  • County Governments Actsection 55
  • County Governments Actsection 65
  • Constitution of Kenya, 2010Chapter Six

Cases cited (1)

  • Anarita Karimi Njeru
    [1979] KLR 162
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Constitution and the County Governments Act (petition alleging unconstitutional and unfair labour practices)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Musa Ogaro Osoro v Wilfred N. Gutwa & 3 others [2016] KEELRC 468 (KLR)", Case Analysis (2016). Petition No. 24 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/468/eng@2016-09-15

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