Stephen Kinuthia Kiiru v Governor - Nyandarua County Government & 2 others; Nyandarua County Government Public Service Board & another (Interested Parties) [2019] KEELRC 600 (KLR)
The bottom line
#A Kenyan court ruled that suspension pending investigation is not a disciplinary decision, so it cannot be quashed — but prolonged suspension must still end within reasonable time.
What this practically means
#Executive summary
#Key legal issues
#Whether certiorari lies to quash a letter of suspension issued pending investigation
Certiorari was refused because no adverse decision had been made; suspension pending investigations is not a disciplinary decision and natural justice does not apply at that preliminary stage
The court found employment was still subsisting and the applicant had been invited to a disciplinary hearing before the County Human Resource Management Advisory Committee. Since suspension is a holding operation pending inquiries, there was no decision quashable by certiorari. The court adopted the reasoning in Humphrey Makokha Nyongesa that suspension merely initiates an investigation process.
Whether judicial review was the appropriate procedure
Judicial review was not the most efficacious or appropriate proceeding for an employment suspension dispute; the applicant moved the court prematurely
The court held that where other sufficient and adequate avenues exist, a party should not trivialize constitutional/judicial review jurisdiction. It invoked Rule 7 of the ELRC Procedure Rules, 2016, the Law Reform Act and Order 53 of the Civil Procedure Rules, and cited Gabriel Mutava and Harrikissoon and Speaker v Karume on following prescribed procedures for redress.
Limits on the employer's prerogative to suspend
While the employer may suspend an employee to allow investigations, suspension must be resolved within reasonable timelines, failing which the employee returns to work
The court accepted the employer's right to suspend but stressed it must be done within timelines set in the operations manual or HR policy and the employee invited back to address findings or resume work. Prolonged suspension beyond a reasonable time, exemplified by over three months, causes anxiety and is unreasonable; a three-month deadline was set for conclusion of the process.
Legal principles established
#- Where there exists another sufficient and adequate avenue to resolve a dispute, a party ought not to trivialize the jurisdiction of the constitutional court
- A clear procedure prescribed by the Constitution or an Act of Parliament for redress of a grievance should be strictly followed
- Suspension of an employee pending investigations is not disciplinary action; natural justice rules do not apply at that stage
- Prolonged suspension not resolved within a reasonable time is unreasonable; retaining an employee on suspension for over three months was held unreasonable
Court orders
#- 1.The application dated 27th February, 2019 is declined
- 2.Parties shall return to the shop floor and address as appropriate
- 3.If there is no conclusion of the disciplinary process within the next three (3) months and the period ending 31st December, 2019, the applicant shall return to work and resume his duties with the 1st respondent as of 1st January, 2020 without any further reference to these proceedings
- 4.On the order to return to the shop floor, each party shall bear own costs
- 5.Note: the court records that during the hearing it had ordered restoration of the applicant's due salary and full benefits, and the respondents complied
- Jurisdiction invoked
- Judicial review jurisdiction of the Employment and Labour Relations Court under Rule 7 of the Employment and Labour Relations Court (Procedure) Rules, 2016, read with the Law Reform Act and Order 53 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Kinuthia Kiiru v Governor - Nyandarua County Government & 2 others; Nyandarua County Government Public Service Board & another (Interested Parties) [2019] KEELRC 600 (KLR)", Case Analysis (2019). Not stated in the judgment text (Notice of Motion dated 27th February, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/600/eng@2019-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.