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ELRCPartially AllowedNot stated in judgment· [2017] KEELRC 1938 (KLR)

Lilian Karanja & 114 others v County Secretary, County Government of Nakuru & 3 others [2017] KEELRC 1938 (KLR)

Employment and Labour Relations Court
7 December 2017
RSRadido Stephen
858 words in judgment
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The bottom line

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A Kenyan court ruled that sending county employees on indefinite compulsory leave by press release, with no legal basis, was unlawful.

What this practically means

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Executive summary

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The Petitioners, county administrators, were sent on compulsory leave with pay pending investigations into their recruitment by a press release dated 28 August 2017, and they petitioned the Employment and Labour Relations Court at Nakuru alleging violations of their rights to fair administrative action, fair labour practices, fair hearing and protection under Article 236, together with an interlocutory motion for conservatory orders. The 3rd and 4th Respondents argued they were mis-joined; the Court rejected this, holding that section 59 of the County Governments Act vests the 3rd Respondent with functions over the county public service. On the merits, the Court held that the compulsory leave was in substance a unilateral suspension with no contractual or statutory basis, and that it was not time bound. While acknowledging that an employer need not assign work but only pay wages, the Court found the investigations could have been carried out with the Petitioners in the workplace, since employees are under a universally implied duty to cooperate with investigations. The Petition therefore partially succeeded: the declarations as drafted were found verbose and imprecise, and in lieu thereof the Court declared the compulsory leave unlawful, ordered the Petitioners' immediate access to their workplaces, and directed cooperation with investigations to be completed expeditiously. Considering the subsisting employment relationships, each party was ordered to bear its own costs. Judgment was delivered in Nakuru on 7 December 2017 by Radido Stephen, Judge.

Key legal issues

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01

Whether the 3rd and 4th Respondents were properly joined

Holding

They were properly joined; the 3rd Respondent has statutory functions over county public service under section 59 of the County Governments Act

Reasoning

The Court found the contention of non-joinder had no legal foundation because section 59 of the County Governments Act vests the 3rd Respondent, an organ of the 4th Respondent, with functions over the county public service in which the Petitioners serve as employees.

p. 6
02

Whether the compulsory leave was lawful

Holding

Unlawful - no contractual or statutory basis was cited, it was an indefinite unilateral suspension contrary to Articles 236 and 41

Reasoning

The Respondents cited no contractual or legal authority for sending the Petitioners on unbounded compulsory leave, which amounted to a unilateral suspension. The investigations could have proceeded while the Petitioners remained at work, and employees have a duty to cooperate with investigations, so the leave was neither lawful nor fair.

p. 7

Legal principles established

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  • A unilateral suspension of an employee without contractual or statutory basis is unlawful
  • An employer is under no obligation to assign work, only to pay wages while employment subsists

Court orders

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  1. 1.A declaration that the decision to send the Petitioners on compulsory leave was unlawful
  2. 2.The Petitioners to be allowed access to the individual work places forthwith
  3. 3.The Petitioners to cooperate with the Respondents in the investigations being conducted which should be completed expeditiously
  4. 4.Each party to bear own costs

Authorities

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Legislation

  • County Governments Actsection 59

Cases cited (1)

  • McKenzie v Smith
    (1976) IRLR 345
Jurisdiction invoked
Constitutional petition under Articles 41 and 236 of the Constitution (fair labour practices and protection of public officers)

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, "Lilian Karanja & 114 others v County Secretary, County Government of Nakuru & 3 others [2017] KEELRC 1938 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1938/eng@2017-12-07

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