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ELRCDismissedPetition (Amended Notice of Motion dated 12th March 2021) - number not stated in judgment· [2021] KEELRC 1521 (KLR)

Wilkister Awino Ojienda v Director of Public Prosecutions [2021] KEELRC 1521 (KLR)

Employment and Labour Relations Court of Kenya
21 April 2021
NMNzioki wa Makau
2,744 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to lift an employee's interdiction, ruling she must first go through her employer's internal disciplinary hearing before seeking the court's help.

What this practically means

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Executive summary

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The Petitioner, a Prosecution Counsel in the Office of the Director of Public Prosecutions, moved the Court by Amended Notice of Motion dated 12th March 2021 seeking conservatory orders suspending and lifting her interdiction imposed by letters dated 9th and 14th December 2020, reinstatement of her full pay and withheld salaries, posting without discrimination and career advancement. She argued that the interdiction lapsed after three months under Clause 11.17.5.5 of the ODPP HR Manual without investigations; that it was authored by a non-Authorised Officer and bore a wrong personal file number; that she enjoyed statutory immunity for prosecuting Ngong CM Misc. Criminal Application No. E023 of 2020; and that her rights to natural justice and fair administrative action were violated. The Respondent, through Monica Mburugu, Head of Human Resource Management, countered that the interdiction was a disciplinary procedure pending extensive investigations, that the file number error was a minor typographical slip, that the petitioner received half salary plus benefits, and that she had not met the threshold for conservatory orders. The Court, applying Alfred Nyungu Kimungui v Bomas of Kenya, held that courts should not interfere with managerial prerogatives, particularly at interlocutory stages, and that initiation of disciplinary processes is presumed to be a management prerogative. Since the Petitioner's disciplinary process was underway and she had not yet been heard before the Respondent's organs, her claim was premature. The motion was dismissed with no order as to costs.

Key legal issues

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Whether the Court should grant conservatory orders lifting an interdiction and reinstating pay pending determination of the Petition

Holding

The application was dismissed; an employee facing an ongoing disciplinary process must first be accorded a hearing before the employer's organs before invoking the Court's jurisdiction

Reasoning

Relying on Alfred Nyungu Kimungui v Bomas of Kenya, the Court held that interim orders which stifle managerial prerogatives in staff administration should be avoided. Disciplinary processes are presumed to be management prerogatives and judicial interference at interlocutory stages would amount to directing the employer in regulation of employees. The Petitioner's claim was premature since the internal hearing had not taken place.

p. 3

Legal principles established

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  • Courts should be cautious not to take over or limit genuine exercise of managerial prerogatives, especially at interlocutory stages, including initiation of disciplinary processes

Court orders

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  1. 1.The Notice of Motion dated 12th March 2021 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Employment Actnot specified
  • Office of the Attorney General Act2012
  • Office of the Director of Public Prosecutions Actsections 15, 69(3)
  • ODPP Human Resource ManualClauses 11.17.5.1, 11.17.5.5, 11.20.1, 10.15.5
  • HR Manual for the Public Service of May 2016Sections K3(4), K6(2)

Cases cited (6)

  • Professor Gitile Naituli v University Council Multimedia University College & Another
    [2013] eKLR
  • Martin Nyaga Wambora v Speaker of The County Assembly of Embu & 3 Others
    [2014] eKLR
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others
    [2014] eKLR
  • Microsoft Corporation v Mitsumi Computer Garage
    [2001] eKLR
  • Fredrick Saundu Amolo v Principal Namanga Mixed Day Secondary School & 2 Others
    [2014] eKLR
  • Alfred Nyungu Kimungui v Bomas of Kenya
    [2013] eKLR
Jurisdiction invoked
Not expressly stated; invoked in first instance over an employment/constitutional dispute concerning a public officer's interdiction by the ODPP

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, "Wilkister Awino Ojienda v Director of Public Prosecutions [2021] KEELRC 1521 (KLR)", Case Analysis (2021). Petition (Amended Notice of Motion dated 12th March 2021) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1521/eng@2021-04-21

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