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ELRCDismissedPetition No. 29 of 2018· [2018] KEELRC 1438 (KLR)

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)

Employment and Labour Relations Court
19 July 2018
1,833 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 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

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Executive summary

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This interlocutory ruling in the employment rights petition by Ezra Chiloba, former Chief Executive of the Independent Electoral and Boundaries Commission, arose after the Court ruled on 14 June 2018 that his compulsory leave was unlawful. On the same day the Commission's chair, vice-chair and a commissioner suspended him for three months pending a procurement audit, prompting the applicant to seek a conservatory order restraining implementation of the suspension and an order setting it aside. The respondents opposed, arguing the suspension had contractual foundation in the Human Resources and Administrative Policies and Procedures Manual, was intended to facilitate an in-depth procurement audit with statutory basis in the Public Finance Management Act, and that courts should intervene in disciplinary processes only where exceptional circumstances exist. The Court held that unlike the compulsory leave, the suspension had contractual basis and was a preliminary investigative process. No direct authority supported a pre-suspension hearing, and the Court could not yet determine whether the suspension was administrative action under Article 47, citing the Chirwa v Transnet distinction between employer action and administrative action. Though interlocutory relief should be anchored in a substantive suit (Kihara v Barclays Bank), the interlinkage of facts saved the application from failure on that ground. The Court also declined to rule on the Commission's quorum pending full addresses and cautioned against composite contempt and injunctive applications. Orders (E) and (F) were declined with costs in the cause.

Key legal issues

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01

Authority for the suspension of the applicant

Holding

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

Reasoning

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.

p. 3
02

Whether a hearing was required before suspension and whether the suspension was administrative action

Holding

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

Reasoning

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.

p. 3
03

Whether the orders sought were anchored in the Petition

Holding

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

Reasoning

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.

p. 3
04

Quorum of the Commission

Holding

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

Reasoning

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.

p. 4
05

Malice and constitutional violations alleged

Holding

The Court would await full facts and law before determining allegations of malice and breach of constitutional rights

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Orders (E) and (F) sought are declined with an order that costs be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 19, 20, 21(1), 22(10), 23(1), 27, 28, 41, 47, 232, 258 and 259
  • Employment Act, 2007
  • Fair Administrative Action Act, No. 4 of 2015
  • Public Finance Management Act

Cases cited (2)

  • Chirwa v Transnet Ltd
    (2008) 2 BLLR 97
  • Kihara v Barclays Bank of Kenya Ltd
    (2001) 2 EA 420
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

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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, "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.