Kamau v Kenya Accreditation Service (Petition E053 of 2021) [2021] KEELRC 8 (KLR)
The bottom line
#Kenya's Employment Court ruled that employers cannot unilaterally strip an employee of key duties or reopen settled disciplinary matters without consultation and proper approvals.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction - exhaustion of internal dispute resolution mechanisms
The preliminary objection fails; the court has jurisdiction because no Board decision exists capable of appeal to the PSC and the petition raises constitutional interpretation which only the court may determine
The PSC Act applies to state corporations generally, but no decision by the Board has been made against which an appeal lies to the PSC. The petition challenges disciplinary proceedings and unilateral variation of contract, pleading constitutional breaches meeting the Anarita Karimi Njeru threshold. Under articles 23(1) and 165 the ELRC, not the PSC, interprets the Constitution in employment matters; exceptions to exhaustion apply where constitutional interpretation is at stake. Further, the PSC/HR Manual appeal scheme arguably denies access to court.
Court's intervention in internal disciplinary proceedings
The disciplinary proceedings commenced by the CEO's letter of February 25, 2021 are unfair and the court will intervene to bar revisiting of issues already settled
Only the Board could discipline an officer at Grade KENAS 2, yet the CEO initiated the process without a Board resolution and without investigations required by the HR Manual. Matters including surcharge for improper performance had been settled after representations to the HRC, as confirmed by the CEO's letter of December 8, 2020. Revisiting settled matters would violate the petitioner's legitimate expectation; the respondent may only charge for matters arising after December 8, 2020.
Unilateral transfer of Finance and Accounts function
The transfer was irregular, illegal, null and void as it was done without consultation, Board or SCAC approval, violating the petitioner's rights
Section 10(5) of the Employment Act mandates consultation before revising contractual terms; there was no evidence of consultation. The restructuring altered the organizational structure and staff establishment approved by SCAC, requiring Board and SCAC approval under the State Corporations Act and the Career Progression Guidelines. The unilateral action condemned the petitioner unheard, contrary to article 47, and rewrote his contract contrary to his legitimate expectation.
Reliefs
Declarations granted, settled matters permanently restrained from being revisited, Finance and Accounts function reinstated, but damages refused
Having found the disciplinary process and transfer of functions arbitrary and unauthorized, the petitioner was entitled to declaratory relief, a permanent restraint on revisiting settled issues, and reinstatement of the Finance and Accounts function. Damages were refused because the petitioner remains employed and past disputes had been amicably resolved.
Legal principles established
#- Where a specific dispute resolution mechanism is prescribed by the Constitution or statute, it must be resorted to first before invoking the court's jurisdiction
- An employee need not exhaust internal appeal mechanisms where no decision has been made that is capable of appeal and the petition involves constitutional interpretation within the court's exclusive jurisdiction
- The court may intervene in an employer's internal disciplinary process where the process contravenes the Constitution, legislation, contract or policy, or offends natural justice
- Any change to matters stipulated in a contract of employment requires consultation with the employee under section 10(5) of the Employment Act
- Unilateral alteration of an employee's functions amounting to a change of organizational structure requires approval of the employer's Board and the State Corporations Advisory Committee
Court orders
#- 1.The respondent's preliminary objection is dismissed
- 2.A declaration that the respondent's actions violated the petitioner's rights under articles 41, 47 and 50(1) of the Constitution and were therefore unlawful and unfair
- 3.The respondent is permanently restrained from revisiting the settled issues (matters settled as at December 8, 2020) in the impugned disciplinary proceedings
- 4.The Finance and Accounts function be and is hereby reinstated to the petitioner's docket forthwith
- 5.Any other relief sought and not expressly granted is dismissed
- 6.The petitioner is awarded costs of the suit
- Jurisdiction invoked
- Articles 23(1) and 165 of the Constitution; Employment and Labour Relations Court jurisdiction over employment and labour relations matters
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamau v Kenya Accreditation Service (Petition E053 of 2021) [2021] KEELRC 8 (KLR)", Case Analysis (2021). Petition No E053 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/8/eng@2021-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.