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ELRCPartially AllowedPetition (Employment and Labour Relations Court, Nairobi) — number not stated in judgment· [2021] KEELRC 1819 (KLR)

Kariithi v Micro and Small Enterprise Authority (Petition 87 of 2020) [2021] KEELRC 1819 (KLR)

Employment and Labour Relations Court
23 April 2021
6,100 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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A Kenyan court voided a state corporation's disciplinary process because the wrong committee handled it, and made its Director General personally pay the employee's legal costs.

What this practically means

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Executive summary

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The Petitioner, employed by the Micro and Small Enterprises Authority (a state corporation under Section 29 of the Micro and Small Enterprises Act, 2012) as Senior Assistant Director Supply Chain Management, challenged by constitutional petition and interlocutory motion the disciplinary process initiated against her in June 2020. She received a show cause letter on June 6, 2020, followed by an interdiction letter on June 8, 2020, based on a memo from the Director General to the Human Capital Advisory Committee accusing her of insubordination, sabotage, dishonesty and inefficiency. She contended the Committee lacked mandate over her (being an MSEA Grade 4 officer appointed by the Board), that the process was ultra vires, predetermined and violated Articles 47(1) and 236(b) of the Constitution. The Respondent maintained the Committee was duly constituted and urged judicial non-interference with management prerogatives. The court framed three issues: the Committee's mandate, breach of constitutional rights, and entitlement to remedies. It held that under Regulation 2.8 of the Manual the Committee only recruits for grades MSEA 8–10, and applying Section 51 of the Interpretation and General Provisions Act, disciplinary power rests with the appointing authority — the Board — absent proper delegation. The Committee therefore acted without authority. The court further found the DG's memo predetermined the outcome, the Committee rubberstamped it without hearing the Petitioner, and interdiction issued before the 21 days to respond lapsed, violating Articles 47(1) and 236(b). The whole process was declared null and void ab initio; conservatory and quashing orders were held unnecessary. Damages were refused against the Board, which had dissociated itself; the court directed release of the Petitioner's withheld salary and her reinstatement, with the Director General Henry Rithaa personally bearing the Petitioner's costs.

Key legal issues

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01

Whether the Human Capital Advisory Committee had authority to discipline the Petitioner

Holding

The Committee had no power to discipline officers in job grades MSEA 1 to MSEA 7; the disciplinary process initiated through it was ultra vires and null and void

Reasoning

Regulation 2.8 of the Manual empowers the Committee only to recruit for positions MSEA 8 to MSEA 10. Section 37 of the Micro and Small Enterprises Act vests appointment of staff in the Authority (Board), and under Section 51 of the Interpretation and General Provisions Act the appointing power carries disciplinary power unless delegated per Section 34. The Petitioner was appointed by the Board at MSEA Grade 4, so the Committee acted without authority.

p. 8
02

Whether the disciplinary process violated the Petitioner's constitutional rights

Holding

Yes — rights under Articles 47(1) and 236(b) of the Constitution were violated; the process was predetermined and the Petitioner was interdicted before the 21 days to respond to the show cause letter lapsed

Reasoning

The Director General's memo of May 30, 2020 made conclusive findings of gross negligence without copying the Petitioner; the Committee rubberstamped the DG's conclusions without hearing her; and the interdiction letter issued on June 8, 2020 before expiry of the 21-day period to respond to the show cause letter of June 6, 2020. This breached fair administrative action and due process guarantees.

p. 14
03

Whether the Petitioner was entitled to the remedies sought

Holding

Partially — a declaration of nullity was granted in lieu of conservatory and quashing orders; damages were refused but release of withheld salary and reinstatement were directed; costs were ordered personally against the Director General

Reasoning

All four principal prayers sought the same remedy. Since the process was void ab initio, there was nothing to quash or restrain. The Board had dissociated itself from the Director General's conduct through its Chairman, so damages were declined against the Board. The Director General, who initiated the process, was held personally accountable for costs.

p. 16

Legal principles established

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  • Where a written law confers power to appoint, that power includes, unless a contrary intention appears, the power to suspend, dismiss or discipline (Interpretation and General Provisions Act, s. 51)
  • A public officer shall not be subjected to disciplinary action without due process of law (Article 236(b))
  • Courts interfere with an employer's internal disciplinary process where the employer has violated its own procedures, the law, or where the process is predetermined

Court orders

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  1. 1.A declaration that the whole disciplinary process, from the memo dated May 30, 2020 through the notice to show cause and the letter of interdiction dated June 8, 2020, is null and void ab initio
  2. 2.Withholding of damages against the Board; direction that the Petitioner's withheld salary be released and that she be reinstated to office
  3. 3.Order that the Director General Henry Rithaa personally meet the Petitioner's costs of the petition

Authorities

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Legislation

  • Constitution of KenyaArticles 2, 3, 10, 19, 22, 23, 27, 29(1), 41, 41(4), 47, 47(1), 50, 159(2)(d), 232, 236(b), 258, 259, 48
  • Employment ActSection 46; Section 12; Section 10
  • Micro and Small Enterprises Act, 2012Section 29; Section 34; Section 37
  • Interpretations and General Provisions ActSection 51
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Micro and Small Enterprises Authority Human Capital & Administration Manual, June 2016Regulations 2.6, 2.7, 2.8, 10.25.4, 10.25.5, Clause 2, Clause 8, Clause 10.26, 10:23.1, 10:25.4.1, 10.25.5

Cases cited (8)

  • Thomson Kerongo & 2 others v James Omaribe Nyaoga & 3 others
    [2017] eKLR
  • Esther W Kiege and another v Kenya Forestry Service and another
    (2018) eKLR / [2018] eKLR
  • Simon Rotich Ruto v Judicial Service Commission & another
    (2019) eKLR
  • Geoffrey Mworia v Water Resources Management Authority
    [2015] eKLR
  • Judith Mbaya Tsisiga v Teachers Service Commission
    [2017] eKLR
  • Eustace Muriithi Njeru v Energy and Petroleum Regulatory Authority
    [2020] eKLR
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    [2003] eKLR
  • Alfred Nyungu Kimungui v Bomas of Kenya
    [2013] eKLR
Jurisdiction invoked
Articles 22, 23, 258 and 259 of the Constitution of Kenya; Section 46 of the Employment Act (petition brought as a constitutional petition in the ELRC)

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, "Kariithi v Micro and Small Enterprise Authority (Petition 87 of 2020) [2021] KEELRC 1819 (KLR)", Case Analysis (2021). Petition (Employment and Labour Relations Court, Nairobi) — number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1819/eng@2021-04-23

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