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ELRCPartially AllowedPetition dated 6.3.2019 (Nairobi, ELRC)· [2019] KEELRC 885 (KLR)

Saadia Adan Khalif v Kenya Urban Roads Authority & another [2019] KEELRC 885 (KLR)

Employment and Labour Relations Court
20 September 2019
4,878 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 reinstated a state officer suspended without a hearing, ruling employers must let staff respond before reversing a vetting clearance.

What this practically means

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Executive summary

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The petitioner, Deputy Director Supply Chain Management at the 1st Respondent, petitioned the ELRC after being relieved of her duties by letters dated 28.2.2019 and 5.3.2019 on allegations that she had declined vetting pursuant to the President's directive of 1.6.2018 and circular OP/CAB.39/1A. She sought declarations of unfair and unlawful termination, reinstatement, certiorari to quash the letters, and prohibition of a second vetting. The court framed five issues. It found the petitioner had proved on a balance of probability that she was vetted: she submitted the required documents on 8.6.2018, attended an oral interview on 20.6.2018, and was recalled to work by letter dated 31.10.2018 after the Principal Secretary confirmed her successful vetting. The respondents' allegation that she declined vetting was unsupported by primary evidence and was contradicted by their own further replying affidavit, which acknowledged she had been vetted but inadvertently deemed cleared. The court held the impugned letters amounted to suspension, not termination, so the declaration of unfair termination was declined. However, reversing her clearance and condemning her unheard breached Articles 41 and 47 and section 4 of the Fair Administrative Action Act. Certiorari quashed the letters, reinstatement was ordered without loss of salary and benefits, and prohibition issued against any second vetting. Costs were awarded to the petitioner. Judgment delivered by Onesmus N. Makau J on 20.9.2019 at Nairobi.

Key legal issues

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01

Whether the petitioner was successfully vetted

Holding

The court found she was successfully vetted and the respondents' defence of inadvertent clearance was dismissed

Reasoning

The petitioner submitted the required documents on 8.6.2018, signed the register, attended an oral interview on 20.6.2018 using a visitor's pass, and was confirmed as cleared by the Principal Secretary's letter of 25.10.2018. The respondents produced only hearsay affidavits and did not call primary evidence of any refusal to be vetted. Their own further replying affidavit acknowledged she was vetted, contradicting the impugned letters.

p. 5
02

Whether the letters of 28.2.2019 and 5.3.2019 amounted to termination or suspension

Holding

They amounted to suspension, not termination

Reasoning

The letters relieved the petitioner of her duties with immediate effect awaiting conclusion of her case alongside other officers not cleared in the vetting; they did not bring her employment to an end. The court therefore held the petitioner had not proved termination on a balance of probability.

p. 7
03

Whether the suspension without hearing violated Articles 41 and 47

Holding

Yes - the reversal of her clearance and condemnation without a hearing breached her right to fair labour practices and fair administrative action

Reasoning

The petitioner had already been vetted and recalled to work. Fairness demanded she be heard before retracting that pronouncement. She faced no disciplinary action by the employer but was tied to officers who failed vetting and condemned unheard, which infringed Article 47 and section 4 of the Fair Administrative Action Act.

p. 7
04

Whether a second vetting should be prohibited

Holding

Yes - prohibition granted as no basis existed for a fresh vetting

Reasoning

The court had found the petitioner was successfully vetted; the impugned letters never required a second vetting, and no fresh presidential proclamation or circular justified one. Subjecting her to a second vetting would be discriminatory and unfair.

p. 8

Legal principles established

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  • A decision to reverse a clearance made after vetting, condemning an employee without a prior hearing, breaches the right to fair labour practices and fair administrative action under Articles 41 and 47 and section 4 of the Fair Administrative Action Act
  • Where an employer alleges an employee declined vetting, the burden lies on the employer to prove the circumstances of the refusal by primary evidence

Court orders

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  1. 1.A declaration that the Respondent breached the Petitioner's right to fair labour practices, the right to a fair disciplinary and administrative process and denied the Petitioner adequate time and opportunity to respond to the allegations against her
  2. 2.An order for reinstatement of the Petitioner to the position of the 1st Respondent's Deputy Director Supply Chain Management Unit without loss of salary and benefits
  3. 3.An order of certiorari to remove and quash the Respondent's letters dated 28th February 2019 and 5th March 2019
  4. 4.An order of Prohibition prohibiting the 1st and 2nd Respondents from subjecting the Petitioner to a second vetting process
  5. 5.Costs of the suit to the Petitioner

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22(1), 41, 47(1) and (2)
  • Employment Actsections 41, 43, 45(2)(a) and 45
  • Fair Administrative Action Actsections 2, 4, 4(3)(a) and 4(j)

Cases cited (7)

  • Anarita Karimi Njeri case
    [1979] KLR 154
  • Mumo Matemu vs. Trusted Society of Human Rights Alliance
    [2013] eKLR
  • Okiya Omtatah Okoiti vs. Joseph Kinyua & 2 Others
    [2018] eKLR
  • JMK vs. MWM & Ano.
    [2015] eKLR
  • Onyango Oloo vs. Attorney General
    [1986-1989] EA 456
  • Raila Amollo Odinga & Another vs. IEBC & 2 Others
    [2017] eKLR
  • Kiambu County Tenants Welfare Association vs. Attorney General and another
    [2017] eKLR
Jurisdiction invoked
Article 22(1) and 41 and 47 of the Constitution; Employment Act; Fair Administrative Action Act

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, "Saadia Adan Khalif v Kenya Urban Roads Authority & another [2019] KEELRC 885 (KLR)", Case Analysis (2019). Petition dated 6.3.2019 (Nairobi, ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/885/eng@2019-09-20

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