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ELRCDismissedNotice of Motion dated 6th September, 2019 ( ELRC, Nakuru; related ELRC No.584 of 2019 )· [2019] KEELRC 613 (KLR)

Bernard Mwaura Mbuthia v Nyahururu Water & Sanitation Company Limited; County Government of Laikipia (Interested Party) [2019] KEELRC 613 (KLR)

Employment and Labour Relations Court
17 October 2019
MMM. Mbar?
3,213 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld an employer's right to place an employee on compulsory leave for investigations, as long as full pay and benefits continue.

What this practically means

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Executive summary

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The claimant, managing director of the respondent water company, moved the court by Notice of Motion dated 6th September 2019 seeking a stay of the respondent's decision to send him on 30 days' compulsory leave by letter dated 4th September 2019, and restraining orders against interference with his employment. He contended the decision was not supported by law, his contract or the human resource policy, that no disciplinary proceedings preceded it, and that it was engineered by the interested party, the County Government of Laikipia, the majority shareholder, after he moved court to stop a special shareholder meeting convened to discuss his stepping aside. The respondent and interested party replied that the leave was an interim administrative measure to allow investigations into bribery allegations reported to the EACC, that the claimant attended the board meeting, and that his pay and benefits were intact. The court framed two issues: whether to stay the compulsory leave decision and whether to restrain interference with the claimant's employment. Applying authority including Elizabeth Cherono Kurgat versus Kenya Literature Bureau, the court held that compulsory leave as an interim measure to allow investigations is within the employer's prerogative, removing the employee from the workplace without interfering with terms of service, but warned that prolonged administrative removal without feedback may amount to unfair labour practice. The application was dismissed in effect: the claimant remains on compulsory leave for investigations, retained on full pay and benefits, with costs in the cause.

Key legal issues

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01

Whether compulsory leave pending investigations is lawful

Holding

Compulsory leave as an interim measure to allow investigations is within the employer's purview and is lawful where reasons are stated and benefits are preserved

Reasoning

The court distinguished annual leave under section 28 of the Employment Act from compulsory leave, which is an administrative action issued at the employer's prerogative with stated reasons. It adopted precedent holding that administrative leave to allow investigations is not a material departure from suspension or interdiction, and that the employee may be vindicated or invited to show cause after investigations.

p. 3
02

Whether the claimant's employment benefits may be interfered with during compulsory leave

Holding

Employment is not terminated; the claimant must remain on full pay and benefits, including his allocated vehicle

Reasoning

The court held that since the compulsory leave is interim and employment continues, all benefits flowing from employment must be preserved. The directive to return the allocated vehicle was found to be part of the due benefits package and not an interference with employment.

p. 4

Legal principles established

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  • Compulsory leave issued as an interim administrative measure to allow investigations is within the employer's prerogative and removes the employee from the workplace temporarily without interfering with terms of service
  • Prolonged administrative removal without feedback may amount to unfair labour practice; investigations should be concluded within a reasonable time

Court orders

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  1. 1.The claimant shall remain on compulsory leave to allow for investigations as communicated by the respondent vide letter dated 4th September, 2019
  2. 2.The claimant shall be retained in his employment on full pay together with due benefits
  3. 3.Costs in the cause

Authorities

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Legislation

  • Employment Actsection 28
  • Constitution of Kenya, 2010Article 41

Cases cited (11)

  • Thomson Kerongo & 2 others versus James Omariba Nyaoga & 3 Others
    [2017] eKLR
  • Alfred Kimungui versus Bomas of Kenya
    [2013] eKLR
  • John Mwaniki versus Joshua Irungu & another
    [2017] eKLR
  • Joseph Maina Theuri versus Gitonga Kabugi & 3 others
    [2013] eKLR
  • David Wanjau Muhoro versus Ol Pejeta Ranching Limited
    [2014] eKLR
  • Joseph Gidraph Wanjala versus Diane Hamick & another
    ELC 327 of 2014
  • Humphrey Makokha Nyongesa & Collins Agweyu versus Communications Authority of Kenya & another
    [2018] eKLR
  • Elizabeth Cherono Kurgat versus Kenya Literature Bureau
    [2014] eKLR
  • Ezra Chiloba versus Wafula Wanyonyi Chebukati & 7 others
    [2018] eKLR
  • Samson Omworo versus Maasai Mara University and others
    Cause No.2367 of 2016
  • Victor Sammy Mutiso versus Teacher Service Commission
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes; application under the claim pending hearing (Articles 41 of the Constitution invoked on unfair labour practice)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (12)

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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, "Bernard Mwaura Mbuthia v Nyahururu Water & Sanitation Company Limited; County Government of Laikipia (Interested Party) [2019] KEELRC 613 (KLR)", Case Analysis (2019). Notice of Motion dated 6th September, 2019 ( ELRC, Nakuru; related ELRC No.584 of 2019 ). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/613/eng@2019-10-17

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