Francis Ochieng Oiro v Nairobi City County Government [2020] KEELRC 248 (KLR)
The bottom line
#A Kenyan court ordered Nairobi County to pay a worker Kshs.1 million for suspending him for 14 years without any hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection on jurisdiction had merit
It failed; the issues required factual appreciation and the pleaded grievances went beyond the Employment Act into discrimination, economic rights and fair administrative action
Applying Mukisa Biscuits, the court found the objection was not a pure point of law since facts had to be ascertained. It distinguished Sumayya Athmani Hassan, where remedies were confined to the Employment Act, noting this Petitioner alleged violations not contained in the Employment Act, so there is no bar to founding the cause on the Constitution.
Whether the Petitioner's constitutional rights were infringed
Yes - violations of Articles 27(1), 41, 47(1) and 50 were established through uncontroverted evidence of 14 years' suspension without disciplinary action, non-communication of termination, denial of hearing and omission from secondment
The Respondent never controverted the prolonged suspension or explained it. The termination letter of 25th July 2017 sent by registered post had no proof of receipt, and the Petitioner was still writing for clarification in 2019. No evidence of hearing or investigation existed, and the appeal document was incomplete and internally inconsistent. Secondment of others while omitting the Petitioner breached Article 27(1) and Section 138 of the County Governments Act.
Whether the Petitioner was entitled to reinstatement and back salaries
No - reinstatement was time-barred under Section 12(3)(vii) of the ELRC Act and the salaries claim failed because suspension was on nil pay; instead general damages of Kshs.1 million were awarded
The Respondent proved termination by the letter of 25th July 2017, so the Petitioner ceased to be an employee and could not be reinstated after three years. The nil-pay suspension terms defeated the claim for 15 years' salaries, but Article 23 empowered the court to award compensation of Kshs.1,000,000.00 for the proved rights violations.
Legal principles established
#- Subjecting an employee to prolonged suspension without taking disciplinary action is a breach of Article 47(1) of the Constitution and Section 4(3) of the Fair Administrative Action Act, and amounts to an unfair labour practice
- A termination decision made without informing the employee, and without proof of dispatch of the termination letter, breaches the right to fair administrative action and denies the employee the chance to appeal
- Leaving an employee of the defunct council out of secondment to the county government while seconding others, without justification, violates the right to equality under Article 27(1)
- A preliminary objection that requires appreciation of facts does not meet the Mukisa Biscuits threshold
Court orders
#- 1.Declaration that the Petitioner's rights under Articles 27, 41, 47 and 50 of the Constitution were violated
- 2.Award of general damages of Kshs.1,000,000.00 to the Petitioner as compensation for violation of rights
- 3.Respondent to bear the costs of the Petition
- Jurisdiction invoked
- Article 23 of the Constitution (enforcement of Bill of Rights); Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Ochieng Oiro v Nairobi City County Government [2020] KEELRC 248 (KLR)", Case Analysis (2020). Petition filed 28th October 2019 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/248/eng@2020-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.