Esther W. Keige & another v Kenya Forest Service & another [2018] KEELRC 1719 (KLR)
The bottom line
#Kenya's Employment Court ruled employers cannot force staff onto annual leave to investigate them, awarding each employee Kshs.2 million for rights violations.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness and validity of the compulsory leave ordered by the second respondent
The compulsory annual leave was unlawful and invalid because it was ultra vires the board's resolution and clause 6.12.1 of the HR Policy and Procedure Manual
The board resolved that the petitioners step aside pending investigations with letters issued per the HR Manual, but the second respondent's letter instead sent them on 30 days annual leave. Clause 6.12.1 permits leave for up to three months on full salary to facilitate investigations, not compulsory annual leave. The communication also followed an earlier illegality: a premature press release, a late-night phone suspension and a lock-out.
Whether the petitioners' fundamental rights and constitutional protections were violated
Articles 27, 41, 47, 50 and 236 were violated; the freedom from discrimination claim failed as other officers were also sent on leave
The court found other officers, including the Chief Conservator of Forests, were also made to step aside, so there was no discrimination in the decision to send them on leave. However, the compulsory annual leave treated the petitioners differently from other employees and, being ordered by a person acting ultra vires and contrary to policy and board resolution, breached fair labour practices and fair administrative action guarantees.
Substantive unfairness of the charges and the role of the second respondent
Even if the leave were procedurally fair, it would be substantively wrong as the charges did not relate to the petitioners' area of operations
The HR and Administration Committee minutes showed the charges were vague and unrelated to the petitioners' duties, with management tasked to avail evidence. The second respondent, who chaired both the committee and the board, also prematurely issued the press release, suspended them at night, locked them out and wrote the impugned letter - conduct smacking of unfair labour practice and victimization.
Remedies and quantum of damages
Just satisfaction of Kshs.2,000,000 to each petitioner, plus non-financial remedies restoring them to their offices
Guided by the Peter Ngari Kagume principles (moderate awards, no exemplary or aggravated damages, compensation limited to what exceeds lawful conduct) and prior awards in Mundia Njeru Gateria and Miriam Wambui Thiriku, the court deemed Kshs.2,000,000 per petitioner just satisfaction, in addition to the declarations, injunction and prohibition.
Legal principles established
#- Forcing an employee to go on annual leave so the employer can investigate him is an unfair labour practice and subject to the employee's right to due process under Articles 47 and 50
- Compulsory leave must leave the employee's contractual rights and benefits intact
- A person acting ultra vires an express HR policy provision and contrary to a board resolution acts unlawfully and invalidly
Court orders
#- 1.Declaration that Articles 27, 41, 47, 50 and 236 of the Constitution were violated through the oral order and the letter for compulsory leave dated 14.3.2018, and that the letter is set aside
- 2.Permanent injunction restraining the respondents or their agents from unlawfully debarring the petitioners' ingress into and egress from their offices at Kenya Forest Service, Karura, off Kiambu Road, and from interfering with performance of their lawful duties
- 3.Order of prohibition barring the respondents from unlawfully replacing or terminating the petitioners' contracts of service, and from unlawfully advertising, recruiting or otherwise replacing the petitioners in their positions
- 4.Award of Kshs.2,000,000 to each petitioner as damages for infringement of fundamental rights and freedoms
- 5.Costs of the petition granted to the petitioners
- Jurisdiction invoked
- Articles 10, 27, 41, 47, 50, 73 and 236 of the Constitution of Kenya, 2010 and the Employment Act (constitutional petition for violation of fundamental rights in employment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Miriti v Governor, Meru County & another (Petition E002 of 2024) [2024] KEELRC 2564 (KLR)[2024] KEELRC 2564 (KLR)24 Oct 2024applied
Cite this brief
#Cite this brief
Caselaw, "Esther W. Keige & another v Kenya Forest Service & another [2018] KEELRC 1719 (KLR)", Case Analysis (2018). Petition No 23 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1719/eng@2018-06-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.