Kariithi v Micro and Small Enterprise Authority (Petition 87 of 2020) [2021] KEELRC 1819 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Human Capital Advisory Committee had authority to discipline the Petitioner
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
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.
Whether the disciplinary process violated the Petitioner's constitutional rights
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
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.
Whether the Petitioner was entitled to the remedies sought
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
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.
Legal principles established
#- 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
#- 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.Withholding of damages against the Board; direction that the Petitioner's withheld salary be released and that she be reinstated to office
- 3.Order that the Director General Henry Rithaa personally meet the Petitioner's costs of the petition
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.