Ezra Chiloba v Wafula Wanyonyi Chebukati, Consolata Bucha Maina, Abdi Yakub Guliye, Boya Molu, Margaret Mwachanya, Paul Kurgat, Independent Electoral and Boundaries Commission & Attorney General [2018] KEELRC 1438 (KLR)
The bottom line
#Kenya's Employment Court refused to stop Ezra Chiloba's suspension as IEBC CEO, ruling that suspension to allow investigations is an ordinary contractual step courts rarely disturb.
What this practically means
#Executive summary
#Key legal issues
#Authority for the suspension of the applicant
The suspension had a contractual basis, unlike the compulsory leave struck down earlier, as the Human Resources and Administrative Policies and Procedures Manual allowed suspension where gross misconduct is suspected
The Court found it undisputed that the Commission's HR Manual allows suspension where gross misconduct is suspected. Such suspension facilitates investigations and is a preliminary process that may lead to disciplinary action. Because the suspension had contractual foundation, the exceptional circumstances needed for judicial intervention in disciplinary processes were not established.
Whether a hearing was required before suspension and whether the suspension was administrative action
The applicant cited no direct constitutional or statutory provision for such a hearing, and the Court could not determine whether the suspension constituted administrative action on the material before it
No direct constitutional or statutory provision was cited establishing a right to a pre-suspension hearing. The Court, relying on Chirwa v Transnet, considered that a distinction must be drawn between an employer's action as employer and action in exercise of administrative authority; that question could not be resolved without appropriate addresses from the parties.
Whether the orders sought were anchored in the Petition
Although interlocutory relief should ordinarily be anchored in a substantive suit, the application would not fail because the broad background facts were interlinked with the pleaded case
Following Kihara v Barclays Bank, interlocutory injunctive relief should be anchored in a substantive suit. However, the new factual scenario of the 14 June 2018 suspension arose on the very day of the earlier ruling, and the broad circumstances remained those already pleaded, so the application would not come a cropper on that account.
Quorum of the Commission
Although the pending Petitions did not bar the Court from addressing quorum, it would not be prudent to determine the question before hearing full addresses
The Court deliberately avoided the quorum question in Ruling No. 3. Two Petitions raising the issue substantively were pending, but that did not stop the Court from addressing it. Nevertheless, the Court deferred the determination pending full addresses, contributing to the dismissal of the application.
Malice and constitutional violations alleged
The Court would await full facts and law before determining allegations of malice and breach of constitutional rights
The Court held that allegations of malice, breach of constitutional rights, principles and values required all facts and law to be fully placed before it and interrogated by the parties. The question whether there was malice in the suspension could not be determined before the facts were interrogated, so the applicant's alleged irreparable harm was not established at this stage.
Legal principles established
#- The Court will only intervene in an employer's disciplinary process where exceptional circumstances are demonstrated, such as where the employer's action has no foundation in law or contract
- Suspension of an employee to facilitate investigations is a preliminary contractual process that may lead to disciplinary action, and courts should not micromanage employers
- There is a distinction between an employer acting as employer and action pursuant to performance of a function exercising administrative authority for purposes of Article 47 and the Fair Administrative Action Act
- Interlocutory injunctive relief should be anchored in a substantive suit, though an application may not fail merely where the interlinked background facts are pleaded
- Composite/compound applications combining contempt and injunctive relief, which require different legal principles, should be discouraged
Court orders
#- 1.Orders (E) and (F) sought are declined with an order that costs be in the cause
- Jurisdiction invoked
- Articles 10, 19, 20, 21(1), 22(10), 23(1), 27, 28, 41, 47, 232, 258 and 259 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ezra Chiloba v Wafula Wanyonyi Chebukati, Consolata Bucha Maina, Abdi Yakub Guliye, Boya Molu, Margaret Mwachanya, Paul Kurgat, Independent Electoral and Boundaries Commission & Attorney General [2018] KEELRC 1438 (KLR)", Case Analysis (2018). Petition No. 29 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1438/eng@2018-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.