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ELRCDismissedELRC Cause (Nairobi) - Amended Memorandum of Claim dated 25th April 2017· [2021] KEELRC 1318 (KLR)

Louis Onyango Owoko v Kenya Railways Corporation [2021] KEELRC 1318 (KLR)

Employment and Labour Relations Court
2 June 2021
NMNzioki Wa Makau
4,930 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a manager's challenge to demotion and surcharge because he skipped the required internal appeal to the Public Service Commission before suing.

What this practically means

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Executive summary

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The Claimant, formerly a Treasury Manager at Kenya Railways Corporation, sued for wrongful demotion, wrongful surcharge, harassment and intimidation after fraud by an Accounts Assistant, Charles Gitonga, led to the loss of over Kshs 20 million from Museum collections. He alleged he was a whistle-blower unfairly punished for exposing the fraud, that his interdiction by the Managing Director was ultra vires the HR Policy Manual, that demotion was not a permissible penalty under Clause L.8, and that demotion and surcharge amounted to double jeopardy. He sought declarations, refund of the surcharge of Kshs 504,135, salary arrears, reinstatement and injunctions. The Respondent contended the Claimant bore responsibility for daily reconciliations and loss prevention, admitted responsibility in an internal memo, and was properly disciplined; it also argued the suit was premature for failure to appeal to the Public Service Commission under Section 74 of the Public Service Commission Act. The court found the Claimant failed in his duty to manage collections, admitted responsibility, was given a fair hearing in accordance with internal policies, and found no malice. The court held the Claimant ought to have first appealed to the Public Service Commission and that the suit was prematurely filed. The suit was dismissed with costs to the Respondent. By the time of trial the Claimant's employment had been terminated for unrelated reasons, mooting much of the reinstatement relief.

Key legal issues

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01

Exhaustion of internal remedies

Holding

The claim was premature because the Claimant failed to appeal to the Public Service Commission under Section 74 of the Public Service Commission Act before filing suit

Reasoning

The Respondent submitted, and the court accepted, that the Claimant, as a public officer in a public body, was required under Section 74 of the Public Service Commission Act and Section 9(2) of the Fair Administrative Actions Act to exhaust the appeal to the PSC. The court held that rushing to court without exhausting the internal mechanism rendered the suit premature and payable in costs.

p. 4
02

Negligence and disciplinary sanction

Holding

The Claimant was negligent in failing to manage and reconcile revenue collections, resulting in the loss of close to Kshs 20 million, and the disciplinary process complied with internal policies

Reasoning

The Claimant's duties included coordinating cash management and ensuring revenue collections were properly managed. Nearly Kshs 20 million was stolen from Museum collections. The audit attributed the loss to his negligence, and he admitted responsibility in an internal memo dated 19th August 2016. He was given an opportunity to be heard, and no malice was shown in the disciplinary process.

p. 4

Legal principles established

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  • An employee in the public service must exhaust internal appellate mechanisms, such as appeal to the Public Service Commission, before approaching the Court

Court orders

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  1. 1.The suit is dismissed with costs to the Respondent

Authorities

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Legislation

  • Public Service Commission ActSection 74; Sections 2 and 3
  • Fair Administrative Actions ActSection 9(2)
  • Evidence ActSections 107 and 109
  • Kenya Railways Corporation ActChapter 397 of the Laws of Kenya
  • Kenya Defence Forces ActSection 28
  • Constitution of KenyaArticles 155(3)(a), 158(3), 234(2)(a), 234(3), 254(1) and 260

Cases cited (5)

  • Pelecia Olum v Export Processing Zones Authority
    [2014] eKLR
  • Augustus Wafula Wambati v Moi Teaching & Referral Hospital
    [2014] eKLR
  • Dr. Samuel Gitau Kinyanjui v County Government of Kirinyaga & Another
    [2020] eKLR, Nyeri ELRC Case No. 94 of 2017
  • Stephen Nyarangi Onsomu & Another v George Magoha & 7 Others
    [2014] eKLR
  • Sammy Kipyego Barchok & Another v Postal Corporation of Kenya
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act; court held claim premature for failure to exhaust internal appeal under Section 74 of the Public Service Commission Act and Section 9(2) of the Fair Administrative Actions Act

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, "Louis Onyango Owoko v Kenya Railways Corporation [2021] KEELRC 1318 (KLR)", Case Analysis (2021). ELRC Cause (Nairobi) - Amended Memorandum of Claim dated 25th April 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1318/eng@2021-06-02

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