Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedPetition No. 19 of 2018· [2019] KEELRC 1746 (KLR)

Benjamin Kipkoech Koskei v Governor Nakuru County & 2 others (Petition 19 of 2018) [2019] KEELRC 1746 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
29 April 2019
3,040 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

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

#
The petitioner, formerly chief officer in the Department of Youth and Sports of Nakuru County, challenged by petition his suspension by letters of 16th/20th November 2018 for 60 days pending investigations into alleged leakage of confidential information, coupled with forfeiture of his salary for the suspension period. He sought a declaration that the suspension was unconstitutional and null and void for violating articles 10, 41, 47 and 50, certiorari to quash the decision with reinstatement without loss of benefits, general damages with an inquiry into quantum, and costs. The respondents maintained the suspension was lawful, preceded by a warning and the petitioner's own reply inviting investigations, and formed part of an ongoing disciplinary process within their prerogative. The court held that judicial review remedies such as certiorari must be pursued under sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules, not by petition, and that by electing the petition route the petitioner closed that avenue. On the merits, suspension pending investigation is a normal and lawful workplace procedure, not termination; the employer's disciplinary prerogative is interfered with only on apparent illegality or violation of clear legal provisions. As the petitioner had been warned, allowed to respond, and invited to a disciplinary hearing after the suspension lapsed, due process, fair hearing and natural justice were satisfied, and no rights violation warranting certiorari or damages was established. The petition was accordingly dismissed, save that the petitioner, still in employment, was held entitled to his unpaid salaries from the date of suspension until employment is terminated for any lawful cause.

Key legal issues

#
01

Procedural propriety of seeking certiorari by way of constitutional petition

Holding

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

Reasoning

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.

p. 4
02

Whether the suspension and salary forfeiture violated articles 10, 41, 47 and 50

Holding

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

Reasoning

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.

p. 4
03

Entitlement to unpaid salary for the suspension period

Holding

The petitioner remains an employee whose employment has not ceased; due salary and benefits for the period remain payable

Reasoning

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.

p. 4

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. 1.The petition is dismissed for lack of merit
  2. 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

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 10, 41, 47, 50, 165(5)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 7
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rules, 2012
  • Law Reform ActSections 8 and 9(3)
  • Civil Procedure Rules, 2010Order 53 rule 2
  • Employment Act, 2007Section 41

Cases cited (12)

  • Judith Mbayah Tsisiga versus Teachers Service Commission
    [2017] eKLR
  • Frederick Saundu versus Principal Namanga Mixed Secondary School and 2 others
  • Mrao Limited versus First American Bank of Kenya Ltd & 2 others
    [2203] eKLR
  • Miller and Others versus Chairman of the Minister's Council: House of Representatives & others
    [1991]
  • Lewis versus Heffer & Others
    [1978] 3 Al ER
  • R versus Secretary of State for the Home Department ex parte Doodt
    [1994] 1 AC
  • Republic versus Secretary of the Firearms Licensing Board & 2 others Ex-parte: Senator Johnson Muthama
    [2018] eKLR
  • Mulwa Msanifu Kombo versus Kenya Airways Ltd
  • Prof. Francis M Njeru versus Jomo Kenyatta University of Agriculture & Technology
    [2013] eKLR
  • Booysen versus the Minister of Safety and Security
    [2011] 1 BLL
  • Joseph Mutuura Mberia & Another versus Council of Jomo Kenyatta University of Agriculture & Technology [JKUAT]
    [2013] eKLR
  • Ann Wambui Kamuiru versus Kenya Airways Limited
    [2016] eKLR
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.