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ELRCPartially AllowedCause No 108 of 2020· [2021] KEELRC 1977 (KLR)

Benard Barasa Sunguti v Nairobi County Chief Officer for Urban Planning, Nairobi County Chief Officers for ICT & Nairobi City County Government [2021] KEELRC 1977 (KLR)

Employment and Labour Relations Court
17 March 2021
2,533 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court protected an employee's workspace and access, but denied constructive dismissal damages because he was still being paid and had not resigned.

What this practically means

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Executive summary

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The Claimant, a Public Health Officer seconded to Urban Planning in the Nairobi City County Government for about 12 years, sued the Chief Officers for Urban Planning and ICT and the County Government. He alleged he was removed from his workstation, denied access to his office at City Hall, deprived of development applications for vetting, and denied a functional supervisory online account, which he said amounted to constructive dismissal. He sought permanent injunctions, general damages for constructive dismissal and costs. The Respondents denied the claims, arguing misjoinder (as they were not his employer), failure to exhaust internal mechanisms, and that allocation of duties is a managerial prerogative. They relied on authorities on unfair labour practice, constructive dismissal and the limits of injunctive relief. The Claimant gave uncontroverted evidence that his table and computer were removed and that the account opened for him was operational rather than supervisory; the Respondents called no witnesses. The court found the Claimant still an employee drawing full salary, so constructive dismissal had not crystallised and general damages were refused. However, it deprecated the Respondents' conduct, holding he was entitled to an office and workspace on county premises and not to be treated as an ordinary visitor to City Hall. The claim partially succeeded: permanent injunctions restraining removal from his work station and denial of access to his office were granted, together with orders for provision of an office and computer, and opening of a supervisory online account, with costs capped at Kshs. 100,000/-. Judgment was delivered at Nairobi on 17th March 2021 by Nzioki Wa Makau, Judge.

Key legal issues

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01

Whether the Claimant's constructive dismissal claim could succeed

Holding

The claim for constructive dismissal failed because the employment relationship was intact and the Claimant continued to draw full salary and benefits

Reasoning

The court found that constructive dismissal requires that the employer's conduct forced the employee to resign. The Claimant admitted he had received no termination or warning letters, no disciplinary proceedings, and continued to receive his full salary from the 3rd Respondent. Although the 1st and 2nd Respondents' conduct of removing his workstation and denying him office access planted 'seeds' of constructive dismissal, no dismissal had occurred, so damages for constructive dismissal were not grantable.

p. 3
02

Whether the Claimant was entitled to injunctions and facilities to perform his duties

Holding

The court granted permanent injunctions and ordered provision of an office, computer and a supervisory online account

Reasoning

The court held that the Claimant, as a serving employee, is entitled to a workspace on the employer's premises and cannot be treated as an ordinary visitor to City Hall. The Respondents' conduct in removing his furniture and computer, denying him access, and opening only an operational account (rather than the supervisory account appropriate to his position) was deprecated, warranting injunctive relief and positive orders to facilitate his duties.

p. 1

Legal principles established

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  • An employee who remains in employment and continues to draw salary cannot found a claim for constructive dismissal, though intolerable working conditions may plant its seeds
  • An employee holding an office in the county government is entitled to an office and workspace on the employer's premises and is not to access the premises as any ordinary member of the public

Court orders

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  1. 1.Permanent injunction restraining the Respondents from removing the Claimant from his work station
  2. 2.Permanent injunction restraining the Respondents from denying the Claimant access to his office
  3. 3.Provision of an office and computer by the 1st and 2nd Respondents facilitated by the 3rd Respondent
  4. 4.Opening of a supervisory account by the 2nd Respondent under the operational online account portal of the 3rd Respondent
  5. 5.Costs of the suit capped at Kshs. 100,000/-

Authorities

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Legislation

  • Employment ActSection 13(1)
  • County Government ActNot specified
  • Physical and Land Use Planning ActNot specified
  • Physical Planning ActNot specified
  • Public Health ActNot specified

Cases cited (6)

  • Coca Cola East & Central Africa Limited v Maria Kagai Ligaga
    [2015] eKLR
  • Kenya Power & Lighting Co. Limited v Sheriff Molana Habib
    [2018] eKLR
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Peterson Guto Ondieki v Kisii University
    [2020] eKLR
  • Elizabeth Washeke & 62 Others v Airtel Networks (K) Ltd & Another
    [2013] eKLR
  • Eric V.J. Makokha & 4 Others v Lawrence Sagini & 2 Others
    [1994] eKLR, Civil Application No. 20 of 1994 (12/94 UR)
Jurisdiction invoked
Employment and labour relations jurisdiction (claim for constructive dismissal and unfair labour practices against employer and county officers); no specific constitutional provision cited

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, "Benard Barasa Sunguti v Nairobi County Chief Officer for Urban Planning, Nairobi County Chief Officers for ICT & Nairobi City County Government [2021] KEELRC 1977 (KLR)", Case Analysis (2021). Cause No 108 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1977/eng@2021-03-17

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