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ELRCDismissedPetition No. 2 of 2017· [2018] KEELRC 2599 (KLR)

Chelimo A Esther,Martin A Lotte & 15 others v John Lonyangapuo & 2 others [2018] KEELRC 2599 (KLR)

Employment and Labour Relations Court of Kenya
24 September 2018
3,480 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 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

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Executive summary

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Sixteen petitioners, sub-county and ward administrators employed by the County Government of West Pokot, challenged an internal memo dated 25th August 2017 issued by the newly elected Governor sending them, among 77 employees, on indefinite 'special leave' to facilitate a financial and human resource audit. They sought a declaration that the memo was ultra vires and void, certiorari to quash it, a declaration of constitutional violation, a permanent injunction restraining the County Public Service Board from advertising or filling their positions, and an order to resume duty. The respondents maintained the leave was a lawful managerial measure under the Code of Regulations and HR Manual pending audit, that no termination occurred, and that the petition was premature and failed the Anarita Karimi Njeru particularity standard. The court first addressed the form of proceedings, noting Rule 7 of the ELRC Procedure Rules permits enforcement of constitutional rights in any suit. Applying the Anarita Karimi Njeru test as restated in Trusted Society of Human Rights Alliance, it held the petition was substantively pleaded. On the merits, it found that although 'special leave' is not specifically provided for in statute, taking leave and sending employees on leave pending investigations is lawful and within the employer's mandate, so certiorari could not issue. The advertised positions had not affected the petitioners' existing employment, so no injunction would issue. The court cautioned that indefinite paid leave is an imprudent use of public resources and drew attention to article 226(5) liability. The petition was dismissed with no orders as to costs.

Key legal issues

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01

Whether the internal memo sending petitioners on indefinite 'special leave' was ultra vires and amenable to certiorari

Holding

The memo was lawful; special leave to facilitate audit was within the respondents' powers

Reasoning

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.

p. 5
02

Whether the advertisement of the petitioners' positions threatened their employment security justifying an injunction

Holding

No injunction; the advertisements did not affect the petitioners' existing employment

Reasoning

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.

p. 5
03

Whether indefinite special leave on full pay is prudent governance

Holding

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

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The petition is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 41, 47, 57, 236, 226(5)
  • County Governments Act, 2012Sections 30(3)(f), 50, 51, 57, 72, 76, 77
  • Employment Act, 2007Section 28
  • Employment and Labour Relations Court Act, 2011Section 12
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 7, Rule 7(3)
  • Code of Regulations, 2006Section N.18
  • Public Service Human Resource Policies and Procedures Manual for Public Service, 2016Section E

Cases cited (8)

  • Joseph Giteru Njomo & 26 others versus Nyeri County Government & another
    [2017] eKLR
  • Narok County Government & Another versus Richard Bwogo Birir & Another
  • Nyeri County Government & Another versus Ceciliah Wangechi Ndungu
    [2014] eKLR
  • Annarita Karimi Njeru versus Attorney General
    [1979] KLR
  • Mumo Matemu versus Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR
  • Thomson Kerongo & 2 others versus James Omariba Nyaoga & 3 others
    [2017] eKLR
  • Trusted Society of Human Rights Alliance versus AG & others
    [2012] eKLR
  • Kenya National Examination Council vs. Republic, Exparte Geoffrey Gathenji & 9 Others
    Nairobi Civil Appeal No. 266 of 1996
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.