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ELRCDismissedPetition No. 5 of 2015 (Kisii)· [2016] KEELRC 1445 (KLR)

James Omariba Nyaoga & another v Speaker of the County Assembly Kisii & 2 others [2016] KEELRC 1445 (KLR)

Employment and Labour Relations Court
1 February 2016
4,443 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that sending officials on compulsory leave pending investigation is lawful and not a violation of their rights, dismissing the two Assembly officers' bid for reinstatement with costs.

What this practically means

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Executive summary

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The Petitioners, the Clerk and Director of Finance of the Kisii County Assembly, were sent on compulsory leave by letters dated 7th August 2015 pursuant to a resolution of the County Assembly of 5th August 2015, arising from a dispute over payment of sitting allowances for June and July 2015 when parts of the allowance claims were not supported by the Plenary Register. They filed a petition alleging violations of Articles 2(2), 27(1), 41(1), 47(1), 50(1) and 236 of the Constitution, together with an application for interim mandatory injunction reinstating them, injunctions against disciplinary action and conservatory orders preserving their status. The Respondents raised a preliminary objection which Mbaru J dismissed on 21st September 2015. In opposing the application, the Respondents maintained that compulsory leave merely paved the way for investigations into alleged embezzlement and did not constitute dismissal. The court examined the impugned letters and found nothing irregular: they rested on a resolution of an Assembly with oversight authority, were signed by the Chairman of the County Assembly Service Board which has the mandate to employ and discipline the Applicants, and did not interdict, suspend or dismiss them, only promising due process. Applying the conservatory-order test from Gataru Peter Munya, the court held the Applicants came to court prematurely before any right was contravened, described their responses to the notices as contemptuous and arrogant, and found it against public interest to restore them before the underlying issues were resolved. The application was dismissed with costs on 1st February 2016.

Key legal issues

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01

Whether the County Assembly resolution sending the Applicants on compulsory leave was ultra vires

Holding

The resolution was lawful; the Assembly had oversight authority to make it and the Service Board had disciplinary mandate

Reasoning

The court examined the letters and found them anchored on a resolution of the County Assembly at its sitting of 5th August 2015, within its oversight authority, and signed by the Chairman of the County Assembly Service Board which employs and disciplines the Applicants. The letter did not dismiss or suspend but promised due process, so no illegality arose.

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02

Whether the Applicants established a prima facie case and entitlement to conservatory orders

Holding

No; the Applicants came to court prematurely before any right was contravened

Reasoning

Applying the Munya test for conservatory orders, the court held the Applicants had not shown a contravened or threatened right: the letter promised due process and the Board retained disciplinary mandate. The Applicants' contemptuous and arrogant responses to the notices and the public interest in not restoring them before the underlying issues were resolved weighed against relief.

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03

Whether sending the Applicants on compulsory leave violated Article 236 and fair labour practices

Holding

The compulsory leave did not amount to persecution, dismissal or a breach of constitutional protections at this interlocutory stage

Reasoning

The letter did not interdict, suspend, dismiss or deprive the Applicants of salary; it required them to step aside pending clearance by the Service Board with due process to follow. Consequently no contravention of Articles 41(1), 47(1), 50(1) or 236 was demonstrated at this stage.

p. 9

Legal principles established

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  • Conservatory orders in public-law matters are granted on the inherent merits of the case, bearing in mind public interest, constitutional values and proportionate magnitudes (per Gataru Peter Munya, as cited)
  • A compulsory-leave letter directing an officer to step aside pending clearance, with a promise of due process, does not amount to dismissal, suspension or a violation of rights

Court orders

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  1. 1.The application dismissed
  2. 2.Costs of the application awarded to the Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(2), 27(1), 41(1), 47(1), 50(1), 185, 185(3), 236
  • Powers and Privileges ActSection 12
  • County Government Act, No. 17 of 2012Sections 12(7), 17, 77
  • Public Finance Management Act, 2012Not specified
  • Employment ActNot specified (compulsory leave not recognised in it)

Cases cited (4)

  • Mafoy -v- United Africa Co. Limited
    (1961) 3 ALL E.R 1169-1173
  • Commissioner of Lands & Another v Coastal Aquaculture Limited
    KLR (E&L) 1
  • Mrao Limited v First American Bank Limited
  • Gataru Peter Munya v Dickson Mwenda Kithinji & 2 Others
    [2014] eKLR
Jurisdiction invoked
Articles 2(2), 27(1), 41(1), 47(1), 50(1) & 236 of the Constitution, 2010 (jurisdiction over breach of fundamental rights; preliminary objection on Section 12 of the Powers and Privileges Act Cap 6 dismissed by Mbaru J on 21st September 2015)

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, "James Omariba Nyaoga & another v Speaker of the County Assembly Kisii & 2 others [2016] KEELRC 1445 (KLR)", Case Analysis (2016). Petition No. 5 of 2015 (Kisii). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1445/eng@2016-02-01

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