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ELRCDismissedPetition No. 79 of 2017· [2018] KEELRC 1579 (KLR)

Nixon Otieno Awuor & 4 others v Inspector General of National Police Service & 4 others [2018] KEELRC 1579 (KLR)

Employment and Labour Relations Court
11 June 2018
HWHellen S. Wasilwa
3,266 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan courts will not stop an employer's disciplinary process if employees skip the chance to answer show cause letters first.

What this practically means

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Executive summary

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Five employees of the Nairobi County Government's Accounts and Finance Departments petitioned the Employment and Labour Relations Court after the County Governor, on 23rd August 2017, caused a widely televised raid on the cash office over alleged unpaid revenues of Kshs.7,803,876/=. The Petitioners, who claimed to have learned of the raid from social media, stated that internal investigations found no money lost or misappropriated, but they were arrested, held at Muthaiga Police Station, charged with abuse of office, and issued show cause letters dated 31.8.2017 with interdiction. They sought declarations that their rights to equality and privacy under Articles 27, 31(c), 41(1) and 236 of the Constitution had been infringed, a declaration that punitive action would be ultra vires, conservatory orders prohibiting investigation and prosecution, and damages. The 2nd Respondent filed grounds of opposition, and the 1st Respondent raised a preliminary objection based on prematurity and sub-judice. The Court, per Wasilwa J, held that the Petition was premature: the Petitioners had refused to respond to the show cause letters and instead rushed to Court, which the Court described as imprudent. Following the Court of Appeal's decision in Judicial Service Commission v Gladys Boss Shollei, the Court declined to interfere with the employer's internal disciplinary process absent unfairness. The Petition was dismissed, the Petitioners were given 14 days to respond to the show cause letters, the Respondents were permitted to restart the disciplinary process, and each party was ordered to bear its own costs.

Key legal issues

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01

Prematurity of the constitutional petition

Holding

The Petition was premature because the Petitioners filed suit instead of responding to the show cause letters

Reasoning

The Petitioners were issued with show cause letters requiring a reply within 10 days but chose to come to Court instead. The Court held that the prudent course was to respond to the letters and allow the internal disciplinary process to run, as courts will not micro-manage employer human resource functions unless the process is flawed.

p. 5
02

Victimisation and discrimination under Article 236

Holding

No infringement established; the employer acted within its mandate upon reasonable suspicion of wrongdoing

Reasoning

Although the process of unearthing the suspected wrongdoing may have been hasty and improper, once reasonable suspicion existed and the Petitioners were asked to respond, they were obliged to respond. The disciplinary process had not been shown to be flawed, so no violation of Article 236 was made out.

p. 5
03

Interference with employer's disciplinary discretion

Holding

The Court adopted the Shollei principle that courts cannot micro-manage the human resource functions of other institutions

Reasoning

Relying on the Court of Appeal's decision in Judicial Service Commission v Gladys Boss Shollei, the Court held that judicial interference with employer sanctions is limited to cases where the sanction was imposed unfairly, and that a judge oversteps his mandate where he fails to appreciate the difficulty an employer faces with insubordination.

p. 5

Legal principles established

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  • Courts should not interfere with an employer's internal disciplinary process unless it is flawed
  • A Court should not lightly interfere with the sanction imposed by an employer unless it was exercised unfairly

Court orders

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  1. 1.The Petition is dismissed and the prayers sought are not allowed
  2. 2.The Petitioners are at liberty to respond to the show cause letters within 14 days from the date of the judgment
  3. 3.The Respondents are free to restart their internal disciplinary process
  4. 4.Each party to pay their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(1), 3(1), 10, 22(1), 27, 29, 31(c), 41(1), 50(1), 236, 258, 259 and Chapter Six
  • Fair Administrative Action ActSection 4(3)
  • Public Finance Management (County Government) Regulations 2015Regulation 81(2)
  • County Government ActSection 77
  • Public Service Commission ActSections 85 and 86
  • Criminal Procedure Code(referred to generally)

Cases cited (4)

  • Mumo Matemu vs Trusted Society of Human Rights Alliance
    (2013) EKLR
  • Annarita Karimi Njeru
    (1999) KLR 154
  • Judicial Service Commission vs Gladys Boss Shollei
    Civil Appeal No. 50 of 2014
  • Nampak Corrugated Wadeville vs Khoza
    JA 14/98 (1998) ZALAC 24
Jurisdiction invoked
Articles 2(1), 3(1), 10, 22(1), 27, 31(c), 41(1), 50(1), 258 and 259 of the Constitution

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, "Nixon Otieno Awuor & 4 others v Inspector General of National Police Service & 4 others [2018] KEELRC 1579 (KLR)", Case Analysis (2018). Petition No. 79 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1579/eng@2018-06-11

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