Livingstone Kiptoo Tanui v County Public Service Board,Elgeyo Marakwet County Government & another [2017] KEELRC 1971 (KLR)
The bottom line
#A Kenyan court ruled an employer cannot suspend an employee without pay unless its own rules or contract clearly allow it — suspension must follow proper procedure.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of the claimant's suspension pending investigations
The suspension was unlawful because the conditions precedent under the applicable manuals had not been met; suspension envisaged a completed process (conviction or a finding of gross misconduct), whereas the claimant was suspended pending investigations whose outcome was unknown.
The Court examined the Discipline Manual for the Public Service (Part Four Clause 4.3) and the Human Resource Policies and Procedures Manual (section K, clause K.7), both of which envisage suspension only after a conviction of a serious criminal offence or a finding of culpability of gross misconduct. The claimant was suspended merely pending investigations into alleged payroll irregularities, so the conditions precedent were not satisfied. The proper avenue available to the Respondents was interdiction on half salary under clause K.6 or Part Four Clause 4.3.
Appropriate remedy where suspension was unlawful but disciplinary process is pending
The Court lifted the suspension and awarded remuneration up to the date of the ruling, but declined to stop the disciplinary process.
The disadvantage suffered by the claimant was loss of remuneration, which is capable of precise computation and easy correction. The Court therefore amended the relief: instead of reinstatement with full withheld emoluments as sought, it lifted the suspension and ordered payment of remuneration the claimant would have earned up to the date of the ruling. Because the claimant was scheduled to appear before the Disciplinary Committee, the Court declined to grant an injunction stopping the disciplinary process, holding that discipline can proceed while the officer is on the job at the discretion of the authorised officer.
Legal principles established
#- Suspension of an employee must have either a contractual or statutory basis; without contractual authority, unilateral suspension by the employer constitutes breach of contract.
- Under Part Four Clause 4.3 of the Discipline Manual for the Public Service, suspension of a public officer requires a conviction of a serious criminal offence or a finding of culpability of gross misconduct capable of leading to dismissal.
- It is not mandatory that a public officer facing disciplinary action be interdicted or suspended; the disciplinary process may proceed while the officer remains on the job.
Court orders
#- 1.The suspension through letter dated 15 February 2017 is lifted.
- 2.The applicant be paid remuneration he would have earned up to the date of this ruling.
- 3.No order stopping the disciplinary process scheduled for 5 October 2017.
- 4.Costs to abide the cause.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations claims (referenced as 'this Court' dealing with employment disputes); no specific constitutional or statutory article cited in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Livingstone Kiptoo Tanui v County Public Service Board,Elgeyo Marakwet County Government & another [2017] KEELRC 1971 (KLR)", Case Analysis (2017). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1971/eng@2017-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.