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ELRCPartially AllowedPetition (filed 22nd July 2019)· [2020] KEELRC 672 (KLR)

Josephine Washifutswa Nambiro v Energy & Petroleum Regulatory Authority [2020] KEELRC 672 (KLR)

Employment and Labour Relations Court
17 July 2020
MOMAUREEN ONYANGO
5,537 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled an employee's interdiction unlawful because she was never given a chance to respond to the allegations first.

What this practically means

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Executive summary

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The Petitioner, formerly Principal Office Administrator at the Respondent authority, was summoned to a meeting at the Respondent's head office on 5th July 2019 and there served with an interdiction letter dated 4th July 2019 for unauthorized release of confidential information from her official email. She filed a constitutional petition and a Notice of Motion seeking declarations of violation of Articles 10, 27, 28, 41, 47, 50, 73 and 236, a declaration that Section 6.13 of the Respondent's HR Manual was unconstitutional, a permanent injunction against disciplinary action, setting aside of the interdiction letter, damages and costs. The Respondent countered that interdiction was a preventive, investigative step with contractual basis under its HR Manual, that the petition was premature as internal processes had not been exhausted and no disciplinary hearing had occurred. The court framed two issues: compliance of the interdiction with the HR Manual, and entitlement to the prayers sought. It held that under the Manual a show cause letter is the first step of the disciplinary process, and interdiction should follow only after the employee has been given an opportunity to respond. The letter did not invite a response, the Petitioner did not know she was under investigation, and no time frame was set. Interdiction is punitive, imposing half pay and removal from duties, causing financial and psychological strain. The court found the interdiction violated the HR Manual and Articles 47 and 236 of the Constitution and declared it null and void, ordered release of any withheld salary, and awarded the Petitioner costs. Damages were declined because the employment relationship was subsisting, and the court clarified that lawful disciplinary action remains open to the Respondent.

Key legal issues

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01

Compliance of the interdiction with the respondent's HR Manual and the Constitution

Holding

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

Reasoning

The HR Manual required a show cause letter as the first step in the disciplinary process, with the employee given an opportunity to respond before escalation to investigation and interdiction. The interdiction letter did not require the petitioner to respond to the charges, she had no clue she was under investigation, and the letter set no time frame, leaving her on indefinite interdiction. Interdiction causes financial and psychological strain and is punitive; the court found the process breached Article 47 (fair administrative action) and Article 236 (due process for public officers).

p. 9
02

Entitlement to constitutional damages

Holding

Damages declined notwithstanding the violation

Reasoning

Although the court found a constitutional violation, it considered that the employment relationship between the petitioner and the respondent was still subsisting. Declaring the interdiction null and void and ordering release of withheld salary was deemed adequate redress, and awarding damages in addition was considered inappropriate in the continuing employment relationship.

p. 9

Legal principles established

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  • Interdiction punishes an employee (half pay, removal from duties) and should only be resorted to after the employee has been given an opportunity to respond to the charges through a notice to show cause or has been engaged during investigations
  • Subjecting a public officer to disciplinary action without due process violates Article 236 of the Constitution

Court orders

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  1. 1.Declaration that the interdiction of the petitioner by letter dated 4th July 2019 is unconstitutional and therefore null and void
  2. 2.Order that any salary withheld during the Petitioner's interdiction be released to the Petitioner
  3. 3.Clarification that the nullification of the letter of interdiction is not a bar to disciplinary action being taken against the Petitioner provided it complies with the law and the respondent's HR Manual
  4. 4.Respondent to bear the Petitioner's costs of the petition

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 20, 21, 22, 23, 27, 28, 41, 47, 48, 50, 73, 159, 236, 258, 259
  • Employment ActSections 5, 41
  • Fair Administrative Actions ActSection 4 (part 1); cited also as Fair Administrative Action Act No 4 of 2015
  • Official Secrets ActCap. 187
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1
  • Mwongozo Code of Governance for State Corporationsnull
  • Energy and Petroleum Regulatory Authority Human Resource Policy and Procedures Manual 2018/2019Sections 6.13, 10.19.1, 10.30.1, 10.30.2, 10.38.1, 10.38.2, 11.4, 11.9.9, 11.12, 11.12.1, 11.12.2, 11.12.3, 11.12.11
  • ICT Policy of the RespondentSection 3.3.2

Cases cited (11)

  • Phillip K. Tunoi & Another v Judicial Service Commission & Another
    [2016] eKLR
  • Republic v Kenya School of Law & 2 Others ex-parte Juliet Wanjiru Njoroge
    [2014] eKLR
  • Pastoli v Kabale District Local Government Council and Others
    [2008] 2 EA 300
  • 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
  • Kenya Plantation & Agricultural Workers Union v Finlays Horticulture Ltd
    [2015] eKLR
  • Mckenzie v Smith
    (1976) IRLR 345
  • John Siguro Otido –v- Energy Regulatory Commission & another
    [2018] eKLR
  • Joseph Makau Munyao & 4 others -v- Kenya Ports Authority & another
    [2016] eKLR
  • Audrey Wafubwa & 5 Others v Speaker Trans Nzoia County Assembly & 3 Others
    [2017] eKLR
Jurisdiction invoked
Articles 10, 20, 21, 22(2), 27, 41, 47, 50, 159, 236 & 259 of the Constitution of Kenya

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, "Josephine Washifutswa Nambiro v Energy & Petroleum Regulatory Authority [2020] KEELRC 672 (KLR)", Case Analysis (2020). Petition (filed 22nd July 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/672/eng@2020-07-17

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