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ELRCPartially AllowedPetition dated 19th July 2019· [2020] KEELRC 655 (KLR)

Eustace Muriithi Njeru v Energy and Petroleum Regulatory Authority [2020] KEELRC 655 (KLR)

Employment and Labour Relations Court
17 July 2020
MOMaureen Onyango
6,869 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that an employer punished an employee unfairly and illegally forced staff who sued it onto compulsory leave.

What this practically means

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Executive summary

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The Petitioner, an employee of the Energy and Petroleum Regulatory Authority, petitioned the Employment and Labour Relations Court challenging his interdiction by letter dated 4th July 2019 for alleged unauthorised release of confidential information, his redeployment letter of 14th February 2019, and Section 6.13 of the respondent's Human Resource Practice and Procedures Manual (2019) which required employees with litigation against the Authority to go on compulsory leave. He sought declarations of violation of Articles 10, 27, 28, 41, 47, 50, 73 and 236 of the Constitution, nullification of the impugned letters, an injunction, damages and costs. The respondent opposed, arguing the petition was premature as internal disciplinary remedies had not been exhausted and that disciplinary control is a management prerogative. The court framed five issues and held that the interdiction violated the respondent's own HR Manual and Articles 47 and 236 of the Constitution because the Petitioner was never given a notice to show cause or an opportunity to respond, and the interdiction was indefinite. The court held it was justified in intervening since the employer had breached its own procedures and the Petitioner's fears of victimisation were not allayed. The redesignation and redeployment were found unconstitutional for want of consultation and transparency, contrary to section 10(5) of the Employment Act and Article 232. Section 6.13 of the HR Manual was declared unconstitutional as victimisation and unfair labour practice. The court declared the interdiction and redesignation null and void, ordered release of withheld salary, declared Section 6.13 unconstitutional, declined damages as the employment relationship subsisted, clarified that lawful disciplinary action remains open to the respondent, and awarded the Petitioner costs.

Key legal issues

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01

Whether the interdiction of the Petitioner complied with the HR Manual and the Constitution

Holding

The interdiction violated the respondent's HR Manual and Articles 47 and 236 of the Constitution and was unconstitutional

Reasoning

The interdiction letter did not require the employee to respond to the charges, the employee had no clue he was under investigation, and no time frame for the interdiction was stated. The HR Manual required a notice to show cause before interdiction, and Article 236 prohibits subjecting a public officer to disciplinary action without due process.

p. 8
02

Whether the Petitioner was justified in moving to court before the disciplinary process was concluded

Holding

Yes - the respondent had violated its own HR Manual and the Petitioner's fears of victimisation were not allayed

Reasoning

Although courts are slow to interfere with management prerogatives and internal disciplinary processes, intervention is justified where the employer breaches its own procedures, the law, or acts toward a predetermined outcome. The respondent violated its HR Manual in the interdiction, and fears of victimisation were not rebutted.

p. 8
03

Whether the redesignation and redeployment of the Petitioner was lawful

Holding

The redesignation was unconstitutional, being done without consultation, without reference to his qualifications, and in violation of the HR Manual, the Employment Act and Article 232

Reasoning

Section 10(5) of the Employment Act requires consultation before varying contract terms; the HR Manual criteria for redesignation were not followed; the Petitioner was demoted from Grade 5 to 6 and moved to a position for which he lacked qualifications. The action was also inconsistent with the values and principles of public service under Article 232.

p. 9
04

Whether Section 6.13 of the respondent's HR Practice and Procedures Manual (2019) is unconstitutional

Holding

Section 6.13, requiring compulsory leave for employees litigating against the Authority, is unconstitutional

Reasoning

The clause stifles constitutional rights, amounts to victimisation and unfair labour practice contrary to Articles 27 and 41, and contradicts section 46 of the Employment Act which protects employees who initiate legal proceedings against employers. Limitation of such rights is not contemplated in the Constitution.

p. 11

Legal principles established

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  • Interdiction is a punishment and should only be resorted to after giving the employee an opportunity to respond to the charges through a notice to show cause
  • An employer must vary or revise terms of a contract of service only after consultation with the employee under section 10(5) of the Employment Act
  • A clause requiring compulsory leave for employees who litigate against the employer is unconstitutional victimisation and unfair labour practice
  • Courts will interfere with an employer's internal disciplinary process only where the employer has violated its own procedures, the law, or where injustice would otherwise result

Court orders

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  1. 1.Declared the interdiction of the petitioner by letter dated 4th July 2019 unconstitutional and therefore null and void
  2. 2.Declared the redesignation of the claimant unconstitutional for want of transparency and consultation
  3. 3.Ordered that any salary withheld during the Petitioner's interdiction be released to the Petitioner
  4. 4.Declared Section 6.13 of the respondent's Human Resource Practice and Procedures Manual unconstitutional
  5. 5.Stated that nullification of the interdiction letter is not a bar to lawful disciplinary action against the Petitioner
  6. 6.Declined to award damages for breach of the Petitioner's rights
  7. 7.Ordered the Respondent to bear the Petitioner's costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10(1), 19, 20, 22, 23(1), 25, 27, 28, 41, 47, 48, 50, 73, 159(2)(d), 232, 236, 258
  • Employment Act, 2007Sections 5, 10(5), 41, 46
  • Fair Administrative Actions ActSection 4(1)
  • Public Service Commission ActSection 2 (definition of redesignation)
  • Official Secrets ActCap. 187
  • Industrial Court Actnot specified
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1
  • Energy and Petroleum Regulatory Authority Human Resource Policy and Procedures Manual, 2018Sections 2.22, 6.13, 10.19.1, 10.30.1, 10.30.2, 10.38.1, 10.38.2, 11.4, 11.9.9, 11.12
  • Mwongozo Code of Governance for State Corporationsnot specified

Cases cited (13)

  • Phillip K. Tunoi & Another v Judicial Service Commission & Another
    [2016] eKLR
  • Republic v Kenya School of Law & 2 Others exparte Juliet Wanjiru Njoroge
    [2014] eKLR
  • Pastoli v Kabale District Local Government Council and Others
    [2008] 2 EA 300
  • Geoffrey Mworia v Water Resources Management Authority
    [2015] eKLR
  • Miriam Wambui Thiriku v Bomas of Kenya
    [2017] eKLR
  • Esther W. Kiege v Kenya Forest Service and Another
    [2018] eKLR
  • Mundia Njeru Gateria v Embu County Government and 5 others
    [2015] eKLR
  • Anarita Karimi Njeru v Republic
  • Patrick Wanyonyi Khaemba v Teachers Service Commission & 2 others
    [2019] eKLR
  • George Wekesa v Multimedia University of Kenya
    [2016] eKLR
  • Benedict Mtoto Mwabili v County Public Service Board and Taita Taveta County
    [2018] eKLR
  • Judith Mbaya Tsisiga versus Teachers Service Commission
    [2017] eKLR
  • Antoinette Bonita Kamau & another v Energy Regulatory Commission
    [2019] eKLR
Jurisdiction invoked
Articles 22, 23, 47, 41 and 258 of the Constitution of Kenya, 2010 (petition for enforcement of Bill of Rights in an employment dispute)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Eustace Muriithi Njeru v Energy and Petroleum Regulatory Authority [2020] KEELRC 655 (KLR)", Case Analysis (2020). Petition dated 19th July 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/655/eng@2020-07-17

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