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ELRCAllowedJudicial Review Application dated 5th October 2018· [2019] KEELRC 2337 (KLR)

Republic v Kenya Pipeline Company Limited; Director of Criminal Investigations & another (Interested Parties); Ex-parte Francis Amina Juma [2019] KEELRC 2337 (KLR)

Environment and Land Court
4 February 2019
HWHellen Wasilwa
3,889 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court quashed Kenya Pipeline's indefinite suspension of an employee because the criminal charges against him had nothing to do with the company.

What this practically means

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Executive summary

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The Ex parte Applicant, a long-serving employee of Kenya Pipeline Company Limited employed since 1978, sought an order of certiorari to quash his indefinite suspension from duty communicated by letter dated 25th September 2018 and varied by letter dated 4th October 2018 to half salary (interdiction). He argued that the Respondent acted illegally, unreasonably and in breach of its own Staff Rules and Regulations and of Section 62 of the Anti-Corruption and Economic Crimes Act, since the criminal charges he faced (making a document without authority contrary to Section 351(a) of the Penal Code) were neither corruption nor economic crimes nor offences against the company, and that he was not accorded a hearing. The Interested Parties, the DCI and a police officer, denied any vendetta and maintained the suspension followed a DCI letter requesting interdiction and was in line with the Respondent's Staff Rules and Regulations 2015 and the Discipline Manual for Public Service. Relying on the Court of Appeal decision in Child Welfare Society of Kenya, Justice Hellen Wasilwa framed the sole issue as whether the suspension was tainted with illegality and improper exercise of power. She held that although the Applicant was indeed facing criminal charges, the charge was unconnected to the Respondent and its complainant was not the company; Regulation 8.3.4 permitted half-pay suspension only for offences against or to the detriment of the company, and Section 62 ACECA applied only to corruption or economic crimes. The Respondent therefore acted illegally and unreasonably. The court allowed the application, issued certiorari quashing both suspension letters, and awarded costs against the Respondent.

Key legal issues

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01

Whether the indefinite suspension and subsequent interdiction of the Applicant was lawful

Holding

The suspension was illegal, unreasonable and without authority because the criminal charges faced were unrelated to the Respondent and outside the circumstances contemplated by its Staff Rules and Section 62 of the Anti-Corruption and Economic Crimes Act

Reasoning

The Applicant was charged with making a document without authority under Section 351(a) of the Penal Code, an offence whose complainant was not the Respondent. The Respondent's Regulation 8.3.4 permits suspension with half pay only for gross misconduct or criminal offences against or to the detriment of the Company, and Section 62 of the ACECA applies only to corruption or economic crimes. Since neither provision covered the Applicant's situation, the suspension exceeded the Respondent's powers and was quashed by certiorari.

p. 5

Legal principles established

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  • A judicial review applicant must show that the decision complained of is tainted with illegality, irrationality or procedural impropriety
  • An employer cannot suspend an employee for criminal charges unconnected with the employer or its property where its own rules confine suspension to offences against the company's detriment

Court orders

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  1. 1.An order of certiorari to remove into the court and quash the decision indefinitely suspending the Ex parte Applicant from duty as contained in the Respondent's letter dated 25th September 2018 and as varied by the letter dated 4th October 2018
  2. 2.Costs of the Application be paid by the Respondent

Authorities

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Legislation

  • Companies Act (CAP 486)
  • National Police Service Act, No. 11A of 2011Section 28
  • Anti-Corruption and Economic Crimes Act, 2003Section 62
  • Penal CodeSection 351(a)
  • Constitution of Kenya, 2010Articles 27(1), 28, 43, 47, 50
  • Fair Administrative Action ActSections 4, 7(2), 8
  • Kenya Pipeline Staff Rules and Regulations 2015Regulation 8.3.4

Cases cited (7)

  • Child Welfare Society of Kenya v Republic & 2 others Ex-parte Child in Family Focus Kenya
    [2017] eKLR
  • Commissioner of Lands vs Kunste Hotel Limited
    [1997] eKLR
  • R vs Secretary of State for Education and Science ex-parte Avon County Council
    [1991] 1 ALL ER 282
  • An Application by Bokobu Gymkhana Club
    [1963] EA 478
  • Council of Civil Unions vs Minister for the Civil Service
    [1985] AC 2
  • Pastoli vs Kabale District Local Government Council and Others
    [2008] 2 EA 300
  • R vs Barnet London Borough Council ex p Nilish Shah
    [1983] 1 ALL ER 226, 240
Jurisdiction invoked
Section 7(2) of the Fair Administrative Action Act and Article 47 of the Constitution

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, "Republic v Kenya Pipeline Company Limited; Director of Criminal Investigations & another (Interested Parties); Ex-parte Francis Amina Juma [2019] KEELRC 2337 (KLR)", Case Analysis (2019). Judicial Review Application dated 5th October 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2337/eng@2019-02-04

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