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ELRCDismissedPetition No. 79 of 2017· [2018] KEELRC 1775 (KLR)

Nixon Otieno Awuor & 4 others v Inspector General of the National Police Service & 4 others [2018] KEELRC 1775 (KLR)

Employment and Labour Relations Court
11 June 2018
HWHellen S. Wasilwa
3,268 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that employees must answer a show cause letter before asking the courts to stop workplace disciplinary action.

What this practically means

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Executive summary

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Five employees of the County Government of Nairobi, all serving in the Accounts or Finance Departments, petitioned the Employment and Labour Relations Court after events of 23rd August 2017 when a group of men, said to be acting on the report of the Governor, entered the cash office alleging that the Chief Cashier was attempting to steal Kshs.7,803,876/=. The Petitioners were questioned, arrested and later charged with abuse of office. They sought declarations that their rights to equality and privacy had been infringed, conservatory orders restraining the police from investigating and prosecuting them, a declaration that any punitive action against their employment was ultra vires, and damages. The 2nd Respondent filed grounds of opposition arguing the Petition was premature and speculative, while the 1st Respondent raised a preliminary objection premised on prematurity, sub-judice and abuse of process. The Court, per Wasilwa J, held that the Petitioners' quest was premature: they had been issued show cause letters requiring a response within ten days but chose to come to Court instead of responding. Relying on the Court of Appeal's decision in Judicial Service Commission v Gladys Boss Shollei, the Court reiterated that it would not interfere with an employer's internal disciplinary process unless it was flawed, since courts cannot micro-manage human resource functions. Although the process of unearthing the wrongdoing may have been hasty and improper, once there was reasonable suspicion and the Petitioners were asked to respond, they should have responded. The Petition was dismissed, the Petitioners were given 14 days to respond to the show cause letters, the Respondents were at liberty 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 Petition

Holding

The Petition was premature because the Petitioners failed to respond to the show cause letters before rushing to Court

Reasoning

The Court found that upon receipt of show cause letters, the prudent course was to respond. Instead, the Petitioners sought conservatory orders stopping further action. The Court held that interference with internal disciplinary processes is unwarranted unless the process is flawed, and micro-managing human resource functions is not the Court's role.

p. 5
02

Judicial deference to employer's disciplinary discretion

Holding

The Court will not interfere with the employer's discretion in imposing sanctions unless exercised unfairly

Reasoning

Relying on the Court of Appeal's decision in Judicial Service Commission v Gladys Boss Shollei, the Court adopted the position that the workplace must be allowed to operate productively and courts cannot micro-manage human resource functions of institutions, whether public or private.

p. 5

Legal principles established

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  • Courts should not interfere with an employer's internal disciplinary process unless it is flawed; rushing to court before responding to a show cause letter is premature
  • A court should not lightly interfere with a sanction imposed by an employer unless the employer acted unfairly

Court orders

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  1. 1.The Petitioners' orders sought were not tenable and the prayers sought were not allowed
  2. 2.The Petitioners are free 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 as they had begun
  4. 4.Each party will pay their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(1), 3(1), 10, 22(1), 25, 27, 29, 31(c), 41(1), 50(1), 236, 258, 259; Chapter Six
  • Public Finance Management (County Government) Regulations 2015Regulation 81(2); Legal Notice No. 35 of 20th March 2015
  • Fair Administrative Action ActSection 4(3)
  • County Government ActSection 77
  • Public Service Commission ActSections 85 and 86
  • Criminal Procedure Code

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), 236, 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 the National Police Service & 4 others [2018] KEELRC 1775 (KLR)", Case Analysis (2018). Petition No. 79 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1775/eng@2018-06-11

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