Benjamin Kipkoech Koskei v Governor Nakuru County & 2 others (Petition 19 of 2018) [2019] KEELRC 1746 (KLR)
The bottom line
#A Kenyan court upheld a county worker's suspension as lawful but ruled he must still be paid his unpaid salary for the suspension period.
What this practically means
#Executive summary
#Key legal issues
#Procedural propriety of seeking certiorari by way of constitutional petition
The claim was a mixed bag of judicial review and rights remedies; certiorari could not issue through a petition as the leave and time-limit requirements of judicial review procedure were circumvented
The court examined rule 7 of the ELRC (Procedure) Rules, 2016 and section 9(3) of the Law Reform Act and Order 53 rule 2, holding that judicial review remedies carry their own procedural safeguards, including leave and a six-month limitation, which a petition bypasses. By filing a petition the petitioner denied the respondents the appropriate framework and closed that avenue to himself.
Whether the suspension and salary forfeiture violated articles 10, 41, 47 and 50
No violation found. The suspension was for a defined 60-day period to allow investigations, the petitioner had responded to the warning, and upon resumption he was invited to a disciplinary hearing, satisfying due process and natural justice
The employer acted within its disciplinary prerogative after a warning over breach of confidentiality; the petitioner acknowledged the leakage and requested investigations. Suspension to allow investigations is normal practice; the court interferes only on apparent illegality or violation of clear legal provisions. Since a disciplinary hearing was pending, there was no basis for intervention or damages.
Entitlement to unpaid salary for the suspension period
The petitioner remains an employee whose employment has not ceased; due salary and benefits for the period remain payable
Although the suspension itself was lawful and the petition otherwise failed, the salary withheld during suspension had not been paid and remained due for as long as the employment subsists. The court preserved this claim in the dismissal order.
Legal principles established
#- An employer has the prerogative to discipline employees through internal mechanisms, and courts may only intervene where there is apparent illegality or violation of the constitution or law
- Suspension pending investigation is a normal workplace procedure and does not amount to termination of employment
- Judicial review remedies such as certiorari must be pursued under section 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules, and cannot be annexed to a constitutional petition
Court orders
#- 1.The petition is dismissed for lack of merit
- 2.The petitioner shall be paid his due salaries which remain unpaid from the date of suspension until employment is terminated for any lawful cause
- Jurisdiction invoked
- Article 41, 47 and 50 of the Constitution of Kenya, 2010; Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benjamin Kipkoech Koskei v Governor Nakuru County & 2 others (Petition 19 of 2018) [2019] KEELRC 1746 (KLR)", Case Analysis (2019). Petition No. 19 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1746/eng@2019-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.