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ELRCDismissedELRC Petition No. 22 of 2016 (consolidated with Petition No. 23 of 2016)· [2017] KEELRC 1953 (KLR)

Chrispin Otieno Pudo & 6 others v Kisumu County Public Service Board & another [2017] KEELRC 1953 (KLR)

Employment and Labour Relations Court
19 January 2017
MOMaureen Onyango
3,541 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The Employment Court in Kisumu ruled that Kisumu County could lawfully suspend employees on partial pay while investigating allegations, without a prior hearing.

What this practically means

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Executive summary

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Two consolidated petitions by seven county employees of Kisumu County Government, former officials of MEK SACCO Society Limited, challenged letters dated 27th May 2016 suspending them on one-quarter salary and requiring them to show cause why disciplinary action should not be taken following a Co-operative Development inquiry report that recommended surcharges totalling approximately Kshs.17 million and bar from holding co-operative positions. The petitioners sought declarations that Articles 27, 41, 47 and 51 were violated and that the suspension was null and void, arguing they were suspended without a hearing, without investigations, and that the subject matter belonged to the Co-operative Tribunal and courts, with related matters pending in the High Court and Tribunal. The Respondents justified the action under Article 235, Articles 232, Sections 35 and 36 of the Public Officers Ethics Act, the Co-operative Societies Act and the County HR Manual. The court found the facts undisputed, held the Respondents had authority to suspend and require show cause, that suspension was an interim measure under Clause 20.4 of the HR Manual permitting one-quarter salary, and that no punishment without hearing had occurred. No breach of Articles 27, 41, 47 or 51 was found. The petitions were dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the Respondents had authority to suspend the petitioners and require them to show cause

Holding

The Respondents had authority under Article 235 of the Constitution and Section 36 of the Public Officers Ethics Act to suspend the petitioners and require them to show cause why disciplinary action should not be taken.

Reasoning

The court reasoned that under Article 235(1) the County exercises disciplinary control over its public service, and under Sections 35 and 36 of the Public Officer Ethics Act the responsible Commission (the Commissioner for Co-operative Development) investigates, while the County acts as implementation authority. The inquiry report unearthed breaches and the County was entitled to act upon it.

p. 8
02

Whether suspension with ¼ salary before a hearing violated Articles 27, 41, 47 and 51

Holding

Suspension in accordance with Clause 20.4 of the HR Manual was lawful; no violation of Articles 27, 41, 47 or 51 was established, and Article 51 was inapplicable as the petitioners were not in custody.

Reasoning

The HR Manual permits suspension where an employee is charged with a criminal offence or investigations have commenced, with the employee entitled to one-quarter salary. Here an inquiry under the Co-operative Societies Act had found misappropriation, so suspension was an interim measure within policy, not a punishment, and the petitioners would be heard once disciplinary proceedings commenced.

p. 9

Legal principles established

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  • A county government is responsible for exercising disciplinary control over persons holding or acting in offices within its public service under Article 235(1) of the Constitution
  • Suspension is an interim measure to facilitate investigations and is not itself a punishment requiring a prior hearing; an employee may be suspended before being given an opportunity to respond to charges
  • Neither the Commissioner for Co-operative Development nor the SACCO can make recoveries from salaries or take disciplinary action against the petitioners, as they are not the employer

Court orders

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  1. 1.The petitions (and consolidated notices of motion) are dismissed
  2. 2.Each party shall bear its own costs of the petition

Authorities

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Legislation

  • Constitution of KenyaArticles 27, 41, 47, 51, 232, 235(1)
  • Public Officer Ethics ActSections 35, 36
  • Co-operative Societies ActSections 28(4)(k), 73(2)
  • Kisumu County Public Service Human Resource Policy and Procedure ManualParagraphs 11.21.1(m), 11(22), 20.4
Jurisdiction invoked
Constitution of Kenya, Article 235(1) and Articles 27, 41, 47, 51; Employment and Labour Relations Court jurisdiction over employment disputes

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Chrispin Otieno Pudo & 6 others v Kisumu County Public Service Board & another [2017] KEELRC 1953 (KLR)", Case Analysis (2017). ELRC Petition No. 22 of 2016 (consolidated with Petition No. 23 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1953/eng@2017-01-19

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