Chelimo A Esther,Martin A Lotte & 15 others v John Lonyangapuo & 2 others [2018] KEELRC 2599 (KLR)
The bottom line
#Kenya's Employment Court ruled a governor could lawfully send county employees on paid special leave pending investigations, and dismissed their bid to stop their jobs being advertised.
What this practically means
#Executive summary
#Key legal issues
#Whether the internal memo sending petitioners on indefinite 'special leave' was ultra vires and amenable to certiorari
The memo was lawful; special leave to facilitate audit was within the respondents' powers
Although 'special leave' is not expressly contemplated in the County Government Act or the HR Manual, the court held that leave-taking is a matter regulated by the employer and sending employees on leave to facilitate investigations is a lawful exercise of managerial power. Certiorari only issues where a decision is made without or in excess of jurisdiction or in breach of natural justice, which was not established.
Whether the advertisement of the petitioners' positions threatened their employment security justifying an injunction
No injunction; the advertisements did not affect the petitioners' existing employment
The court found the advertised positions had not affected the petitioners' employment, no termination letters had issued, and the petitioners remained on full pay and allowances. On that basis there was no justification to restrain the advertisements.
Whether indefinite special leave on full pay is prudent governance
The court cautioned that keeping employees indefinitely on paid leave wastes human resources and exposes public officers to liability under article 226(5) of the Constitution
While the special leave was lawful, the court observed that keeping the petitioners pending indefinitely while salaries are paid is not prudent use of public resources and drew attention to article 226(5), under which a public office holder who directs use of public funds contrary to law is liable to make good the loss. This was an obiter caution, not a basis for relief.
Legal principles established
#- A person alleging contravention of a constitutional right must set out the right infringed and the particulars of the infringement (Anarita Karimi Njeru rule), applied substantively rather than with talismanic formalism
- Certiorari issues only where a decision is made without or in excess of jurisdiction or in breach of natural justice
- Sending employees on leave to allow for investigations is lawful and within the employer's managerial powers
Court orders
#- 1.The petition is dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Article 162(2) of the Constitution establishing the Employment and Labour Relations Court; Employment and Labour Relations Court Act, 2011; ELRC (Procedure) Rules, 2016 Rule 7
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Munywoki v Metsec Cables Limited (Petition E047 of 2022) [2023] KEELRC 76 (KLR)[2023] KEELRC 76 (KLR)20 Jan 2023
- Thika Coffee Mills Ltd v Rwama Farmers Co-operative Society Ltd (Civil Appeal 251 of 2013) [2018] KECA 1 (KLR)[2018] KECA 1 (KLR)12 Oct 2018
- Theophilus Kalama Fondo v Returning Officer Magarini Sub County , Independent Electoral & Boundaries Commission & Peter Ziro Ngowa (Election Petition 1 of 2017) (Civ) [2017] KEMC 51 (KLR)[2017] KEMC 51 (KLR)24 Nov 2017
Cite this brief
#Cite this brief
Caselaw, "Chelimo A Esther,Martin A Lotte & 15 others v John Lonyangapuo & 2 others [2018] KEELRC 2599 (KLR)", Case Analysis (2018). Petition No. 2 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2599/eng@2018-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.