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ELRCDismissedNot stated in the judgment as provided (Petition dated 6th November 2020)· [2021] KEELRC 653 (KLR)

James Muriithi Njogu v Office of the Director of Public Prosecutions Advisory Board [2021] KEELRC 653 (KLR)

Employment and Labour Relations Court
19 October 2021
NMNzioke Wa Makau
4,097 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that an employee who resigned before serving a full training bond must pay the employer the outstanding pro-rated amount.

What this practically means

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Executive summary

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The Petitioner, an Advocate formerly employed as Senior Prosecution Counsel/Chief County Prosecutor – Kitui with the ODPP, petitioned under Articles 22 and 23 of the Constitution challenging the Respondent's demand of Kshs. 1,474,980/- as redemption of a training bond. He had been granted study leave with sponsorship to pursue a Masters in Women's Law at the University of Zimbabwe, subject to a 20% basic salary deduction and a training bond. He returned to duty in October 2015 to undertake field research, resigned on 2nd November 2016 to pursue a second Masters at the University of Warwick, and on clearance was met with the bond demand and non-issuance of a Certificate of Service. He alleged violations of Articles 31, 41, 47 and 236, abuse of public office, and breach of legitimate expectation. The Respondent countered that the 16-month course attracted a two-year bond under the PSC Guidelines and the ODPP HR Manual; that the Petitioner's return in October 2015 was for field research forming part of the Masters; that his resignation preceded completion of the bond; and that no rights were infringed, citing the Anarita Karimi Njeru precision principle. The court framed four issues: whether the bond was served, whether rights were violated, what remedies lie, and costs. It held that field research formed part of the study, so the bond ran from completion of studies, leaving part of the two-year bond unserved; the Petition was inarticulate on the rights allegedly infringed; and no remedies lay. The Petition was dismissed with no order as to costs.

Key legal issues

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01

Whether the Petitioner served his training bond

Holding

He did not; his course was 16/18 months attracting a 2-year bond period which ran from completion of studies, and his resignation on 2nd November 2016 left part of the bond unserved

Reasoning

The bond period is computed from completion of studies. The Petitioner's return to Kitui on 15th October 2015 was to undertake field research, which forms part of the Masters programme; he was therefore still on study. The Respondent was entitled to demand the pro-rated bond sum for the unserved period.

p. 5
02

Whether the Respondent violated the Petitioner's constitutional rights (Articles 31, 41, 47, 236)

Holding

No violation was established; the Petition was inarticulate on the rights infringed and how

Reasoning

Applying the Anarita Karimi Njeru principle, a party must identify the rights infringed and the manner of infringement with precision. Demanding a bond amount due to the Government is not a violation of rights, and the Respondent's actions were within the bonding guidelines and due process.

p. 5
03

What remedies lie

Holding

None; no remedies lie for the Petitioner and the Petition deserved dismissal

Reasoning

Having failed to establish the bond was served or that rights were infringed, no remedies under Article 23(3) could issue. Indeed the court found the Respondent to be the party wronged.

p. 5

Legal principles established

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  • Where a party alleges breach of fundamental rights, the rights must be pleaded with precision and the manner of infringement particularised
  • Field research undertaken as part of a Masters programme counts as part of the study period for purposes of computing the bond period, and the bond runs after completion of studies
  • An employer may lawfully demand payment of a pro-rated bond sum where an employee resigns before serving the bond period

Court orders

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  1. 1.The Petition is dismissed with no order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 3(4), 4, 10, 11, 13, 19, 22, 23, 31, 41, 47, 157(11), 232, 236
  • Guidelines on the Bond for Training Public Servants (PSC), 2016Sections 2.4, 2.9 (Breach of Bond Agreement)
  • Guidelines On The Bond For Training Public Servants, July 2018not specified
  • Office of the Director of Public Prosecutions Human Resource Manual, 2013Sections 2.22, 9.16 to 9.16.2

Cases cited (6)

  • Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others
    [2014] eKLR
  • Rewel Waithaka Gitahi & 2 Others v Kenya Revenue Authority
    [2016] eKLR
  • Evans Odhiambo Kidero & 4 Others v Ferdinand Ndungu Waititu & 4 Others
    [2014] eKLR
  • Anarita Karimi Njeru vs. the Republic
    (1976-1980) KLR 1272
  • Paul Ng'ang'a v DPP & Anor
    Constitutional Reference No. 483 of 2012 (unreported)
  • Matalulu versus DPP
    (2003) 4 LRC 712
Jurisdiction invoked
Article 22 and Article 23 of the Constitution (enforcement of Bill of Rights)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "James Muriithi Njogu v Office of the Director of Public Prosecutions Advisory Board [2021] KEELRC 653 (KLR)", Case Analysis (2021). Not stated in the judgment as provided (Petition dated 6th November 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/653/eng@2021-10-19

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