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ELRCPartially AllowedNot stated in the judgment· [2016] KEELRC 1125 (KLR)

Evans Mumo Mwangangi v Kitui County Public Service Board & another [2016] KEELRC 1125 (KLR)

Employment and Labour Relations Court
27 May 2016
LNLinnet Ndolo
1,685 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court quashed a county employee's year-long interdiction because the Governor and County Secretary lacked written authority to discipline him.

What this practically means

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Executive summary

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This ruling determined the Claimant's Notice of Motion dated 7th January 2016 in an employment dispute against county government respondents. The Claimant, interdicted since June 2015, sought orders restraining the Respondents from interfering with his employment, suspending the interdiction, payment of salary and allowances, and costs. He argued the interdiction process was flawed, malicious and unconstitutional; that only the County Public Service Board could discipline him absent written delegation under Section 86(1) of the County Governments Act; and that the interdiction was indefinite and his allowances withheld. The Respondents, through Alexander Kimanzi's affidavits, countered that disciplinary processes were pending, the claim was premature, and the reliefs sought were in the nature of judicial review which the Court lacked jurisdiction to grant. The Court accepted the principle that it should not interfere with ongoing internal disciplinary processes except in exceptional circumstances, but held it was not a hapless bystander where the employer acts unlawfully. It found no contractual or statutory foundation for the interdiction, no written delegation of the Board's disciplinary powers to the Governor or County Secretary, and a year-long suspension that fell short of the procedural fairness required by Section 41 of the Employment Act. The Court quashed the interdiction, reinstated the Claimant without loss of pay or benefits, and awarded the costs of the application to the Claimant.

Key legal issues

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01

Whether the Court may intervene in an ongoing disciplinary process

Holding

The Court may intervene where the process is unlawful, irregular or procedurally unfair; the interdiction fell short of the required procedural fairness, justifying intervention

Reasoning

The Court accepted the general restraint against interfering with internal disciplinary processes but held it is not a hapless bystander where injustice is meted out. Restraint presumes the employer will act lawfully and reasonably. Here there was no contractual or statutory foundation for the interdiction, no hearing before interdiction, no written delegation, and a year-long suspension, so the process fell short of Section 41 procedural fairness.

p. 4
02

Whether the Governor and County Secretary had power to discipline the Claimant

Holding

They lacked the power; only the County Public Service Board could discipline the Claimant absent written delegation under Section 86(1) of the County Governments Act, so the committees appointed by the Governor had no mandate

Reasoning

Section 86(1) of the County Governments Act permits the County Public Service Board to delegate its functions only in writing. No instrument of delegation to the Governor or County Secretary was found. It follows that the disciplinary process initiated was ultra vires and the Governor's committees had no mandate to sit over the Claimant's case.

p. 3
03

Whether the prolonged interdiction with reduced emoluments was lawful

Holding

It was unlawful; a year on suspension is far too long, and prolonged interdiction acquires the character of a final disciplinary action requiring full due process under Section 41 of the Employment Act

Reasoning

Disciplinary cases should be handled expeditiously. A prolonged disciplinary process is like the sword of Damocles hanging over an employee and constitutes an unfair labour practice. Unlike neutral suspension, interdiction is a disciplinary action requiring due process under Section 41, which was not followed here.

p. 4

Legal principles established

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  • The Court should not interfere with an ongoing internal disciplinary process except in exceptional circumstances, but its restraint is premised on the employer acting lawfully and reasonably
  • Disciplinary powers vested in a statutory body must be exercised by that body except where lawfully delegated in writing; absent written delegation under Section 86(1) of the County Governments Act, the Governor and County Secretary could not discipline the Claimant
  • A prolonged disciplinary process amounts to an unfair labour practice and must be decisively discouraged
  • Interdiction is a disciplinary action that must be taken in the context of due process under Section 41 of the Employment Act, and a prolonged interdiction acquires the character of a final disciplinary action
  • Unilateral suspension of an employee by an employer would constitute breach of contract

Court orders

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  1. 1.The Claimant's interdiction is quashed
  2. 2.The Claimant is reinstated to his position without any loss of pay or benefits
  3. 3.The Respondents will pay the costs of the application

Authorities

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Legislation

  • Constitution of Kenya, 2010Fair administrative action rights (invoked generally)
  • Employment Act, 2007Section 41
  • County Governments Act, 2012Section 86(1)
  • Labour Relations ActNot specified

Cases cited (3)

  • Fredrick Saundu Amolo v Principal Namanga Mixed Day Secondary School & 2 Others
    [2014] eKLR
  • Kenya Plantation & Agricultural Workers Union
    [2015] eKLR
  • Rebecca Ann Maina & 2 Others v Jomo Kenyatta University of Agriculture and Technology
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour disputes (Employment Act and Labour Relations Act invoked; County Governments Act, Section 86(1))

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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 Mumo Mwangangi v Kitui County Public Service Board & another [2016] KEELRC 1125 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1125/eng@2016-05-27

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