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ELRCPartially AllowedApplication and Notice of Motion dated 12th October 2020 (petition cause; number not stated in judgment)· [2020] KEELRC 15 (KLR)

Chrispus Ileli Kunuva v County Government of Kitui & another [2020] KEELRC 15 (KLR)

Employment and Labour Relations Court
22 December 2020
MMM. Mbaru
2,555 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 ruled that suspending an employee indefinitely without pay is unfair—employers must finish investigations within 30 days and pay at least half the salary.

What this practically means

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Executive summary

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The petitioner, formerly Chief of Staff in the Office of the Governor of Kitui County on a contract term, moved the Employment and Labour Relations Court by Notice of Motion dated 12th October 2020 under Article 23 of the Constitution, the ELRC Act, the Industrial Court Rules and the Fair Administrative Action Act. He sought conservatory orders restraining recruitment to his position or removal from the payroll, a stay of the suspension letter dated 7th October 2020 (which suspended him retrospectively from 1st July 2020 without pay), reinstatement, and costs. He alleged unlawful, retrospective and indefinite suspension without a hearing, in violation of Articles 10, 25, 27, 41, 47 and 48 of the Constitution and natural justice. The 1st respondent, through County Secretary Joshua K Chepchieng, denied any termination, asserting the petitioner was merely on suspension, had deserted duty from May 2020, was warned on 11th June 2020, and that investigations were underway. The court framed three issues: conservatory orders against recruitment/payroll removal; stay of the suspension letter; and reinstatement. Applying the principle that an employer's disciplinary prerogative is only interfered with on apparent illegality, the court held that suspension is an interim administrative step that must be resolved within a reasonable time, and that total withdrawal of salary while employment subsists is punitive. It declined reinstatement since employment had not been terminated, and also invoked section 46(h) of the Employment Act protecting employees who litigate against employers. The application was allowed: the petitioner remains on suspension pending investigations to be concluded within thirty days, is to be paid 50% of salary including arrears, resumes duty automatically if not addressed, the petition is to be heard on priority, and costs follow the cause.

Key legal issues

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01

Whether the retrospective, indefinite suspension without pay was unlawful

Holding

The suspension was a valid employer prerogative but being indefinite and unpaid, it required the court's intervention; investigations must conclude within a defined period and partial salary be restored

Reasoning

The court accepted that an employer may suspend an employee to allow investigations, citing Cherono Kurgat. However, suspension must be interim and addressed within a reasonable time; three years was found excessive in authority cited. Withholding the entire salary while employment subsists inflicts hardship and is punitive, warranting restoration of 50% salary pending resolution.

p. 4
02

Whether reinstatement pending the suit should issue

Holding

No, because employment was not terminated; the petitioner remains on suspension

Reasoning

The respondents averred there was no termination and the petitioner was merely suspended; the court agreed there was no basis for an order of reinstatement at the interlocutory stage. The petitioner's position had not been determined, and the disciplinary process could yet vindicate him.

p. 4
03

Protection against retaliatory disciplinary action for instituting legal proceedings

Holding

The court invoked section 46(h) of the Employment Act to caution the respondent that a complaint or legal proceedings against the employer is not a fair reason for disciplinary penalty

Reasoning

In closing, the court drew the respondent's attention to section 46(h) of the Employment Act, 2007, which provides that an employee's initiation of a complaint or other legal proceedings against the employer does not constitute a fair reason for dismissal or disciplinary penalty, unless the complaint is shown to be irresponsible and without foundation.

p. 4

Legal principles established

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  • The employer's disciplinary prerogative may only be interfered with by the court where there is apparent illegality or violation of the constitution or the law
  • A suspension is an interim administrative step to allow investigations and must be addressed within a reasonable time; prolonged suspension causes anxiety
  • Withdrawal of salary while employment subsists is punishment that should not be visited against any employee

Court orders

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  1. 1.The petitioner shall remain on suspension pending investigation and which should be determined within a reasonable time and not exceeding the next thirty (30) days
  2. 2.While the suspension of the petitioner remains in force he shall be paid 50% of his salary and including 50% of the due and unpaid salaries to date
  3. 3.Where (a) above is not addressed as directed, the petitioner shall resume duty without further reference to the notice dated 7th October, 2020
  4. 4.The court shall hear the petition on priority basis
  5. 5.Costs shall follow cause
Jurisdiction invoked
Article 23 of the Constitution; section 3(1) and (2) of the Employment and Labour Relations Court Act, 2011; Rule 16 of the Industrial Court Rules, 2010; sections 4, 6, 7 and 8 of the Fair Administrative Action Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Chrispus Ileli Kunuva v County Government of Kitui & another [2020] KEELRC 15 (KLR)", Case Analysis (2020). Application and Notice of Motion dated 12th October 2020 (petition cause; number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/15/eng@2020-12-22

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