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ELRCPartially AllowedCause No 261 of 2018· [2021] KEELRC 1511 (KLR)

Collins Omondi Ojonyo v Gideon Ochanda & 2 others [2021] KEELRC 1511 (KLR)

Employment and Labour Relations Court
17 March 2021
RSRadido Stephen
1,467 words in judgment
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The bottom line

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A Kenyan court ruled a constituency worker's unpaid suspension was unlawful and awarded him salary, but only against the MP, not the Parliamentary Service Commission.

What this practically means

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Executive summary

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The Claimant, employed as Divisional Coordinator – Bondo Constituency under a contract with the 2nd Respondent (the constituency manager acting for the 1st Respondent, the member of Parliament), was suspended without pay by letter dated 18 June 2018 pending police investigations into alleged fraud. He sued the MP, the manager and the Parliamentary Service Commission, seeking outstanding salaries from April 2018, reinstatement, a permanent injunction and costs. The 3rd Respondent's employment was terminated by letter dated 12 September 2018, though unfair termination was never pleaded. The Court condensed the issues into privity with the Commission, lawfulness of the suspension, unfair termination, and relief. Applying Regulation 22 of the Parliamentary Service (Constituency Office) Regulations, 2005 and the Court of Appeal decision in Parliamentary Service Commission v George Okoth Owuor, the Court held the employer was the MP, not the Commission, which was wrongly joined. Relying on McKenzie v Smith and the Finlays case, it found the unpaid, open-ended suspension unlawful since the contract only allowed interdiction on half-pay. The unfair termination claim was declined for want of pleadings. Reinstatement and mandatory injunction were refused as impractical given the frustrated contract and the personal nature of the relationship. The Court declared the suspension unlawful and awarded Kshs 151,500/- (Kshs 111,100/- suspension salary plus Kshs 40,400/- for April and May 2018). The Claimant was denied costs for filing submissions late. Judgment delivered on 17 March 2021 by Radido Stephen, Judge, at Kisumu.

Key legal issues

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01

Privity of contract with the Parliamentary Service Commission

Holding

The 3rd Respondent was wrongly joined; the employer is the local member of the National Assembly, and the Commission merely facilitated payment

Reasoning

Regulation 22 of the Parliamentary Service (Constituency Office) Regulations, 2005 defines the employer as the member of the National Assembly. The Court of Appeal in Parliamentary Service Commission v George Okoth Owuor & Ors held there is no privity between the Commission and constituency staff. The Commission only facilitated remuneration, so it cannot be liable for breach of contract.

p. 2
02

Lawfulness of suspension without pay

Holding

The suspension was unlawful because no contractual clause or statute authorised suspension without pay and without set duration

Reasoning

Common law requires suspension without pay to rest on a contractual clause or statute. The contract provided for interdiction on half-pay, not unpaid suspension of indefinite duration, and the Respondents disclosed no source of power for the suspension.

p. 3
03

Unfair termination claim

Holding

Declined because unfair termination was never pleaded; the claim was for unlawful suspension

Reasoning

Neither the original nor the Amended Memorandum of Claim pleaded unfair termination, and the Claimant did not seek to amend during testimony even though a termination letter dated 12 September 2018 was on record. A party is bound by its pleadings.

p. 3
04

Appropriate relief

Holding

Salary from 18 June 2018 (suspension) to 28 May 2019 (termination letter filed in court) plus unpaid April and May 2018 salary, totalling Kshs 151,500/-

Reasoning

Reinstatement and mandatory injunction were impractical because the contract was frustrated and the relationship with the MP was personal. Unpaid salary for April and May 2018 was unrebutted by the Respondents who produced no pay records.

p. 3

Legal principles established

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  • Suspension of an employee without pay is lawful only if anchored on a contractual clause or underpinned by a specific statute
  • There is no privity of contract between the Parliamentary Service Commission and constituency staff employed by a member of the National Assembly; the member of Parliament is the employer under the Parliamentary Service (Constituency Office) Regulations, 2005

Court orders

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  1. 1.Declaration that the suspension of the Claimant was unlawful
  2. 2.Award of Kshs 111,100/- as suspension salary
  3. 3.Award of Kshs 40,400/- as salary for April and May 2018
  4. 4.Total award of Kshs 151,500/- to the Claimant
  5. 5.Denial of costs to the Claimant for late filing of submissions

Authorities

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Legislation

  • Parliamentary Service (Constituency Office) Regulations, 2005Regulation 22

Cases cited (3)

  • Parliamentary Service Commission v George Okoth Owuor & Ors
    (2015) eKLR
  • McKenzie v Smith
    (1976) IRLR 345
  • Kenya Plantation & Agricultural Workers Union v Finlays Horticulture Kenya Ltd
    (2015) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under employment and labour law (the judgment does not cite a specific constitutional article)

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, "Collins Omondi Ojonyo v Gideon Ochanda & 2 others [2021] KEELRC 1511 (KLR)", Case Analysis (2021). Cause No 261 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1511/eng@2021-03-17

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