Pius Wanjala v Ethics and Anti-Corruption Commission; Sicily Kariuki, Cabinet Secretary Ministry of Health & another (Interested Parties) [2021] KEELRC 2162 (KLR)
The bottom line
#Kenya's Employment Court ruled it cannot hear challenges to anti-corruption investigations—such cases belong in the High Court's Anti-Corruption Division, even when the suspect is employed.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over a petition challenging EACC investigations of an employee
The ELRC lacks jurisdiction because the petition is not a dispute between employer and employee; the primary issue is the EACC's investigation of alleged criminal/unethical conduct by a third party, not the employment relationship
Article 162(2)(a) and section 12(1) of the ELRC Act confer exclusive jurisdiction over disputes relating to or arising out of employment. Here the petition is brought by a suspect of alleged criminal offences against an independent commission mandated to investigate those offences. The employment relationship is, at most, a secondary issue; the cause of action determines jurisdiction.
Whether the petition belongs in the Anti-Corruption and Economic Crimes Division of the High Court
Yes - the Gazette Notices establishing the Division and its mandate cover petitions on infringement of constitutional rights relating to corruption and economic crimes, and this petition is the proper subject matter for that Division
The Chief Justice's Gazette Notices 9123 of 2015, 10263 of 2016 and 7262 of 2018 established the Division and assigned to it petitions and judicial review applications on claims of infringement or threatened infringement of constitutional rights relating to corruption and/or economic crimes. The petition, which seeks to quash and prohibit the EACC's investigations, falls squarely within that mandate.
Coexistence of criminal and disciplinary processes
Nothing in law bars criminal investigation or proceedings against an employee whose alleged misconduct also constitutes a criminal offence, alongside disciplinary proceedings
The court endorsed the precedents cited by the 1st Interested Party that criminal process does not bind employers and can run parallel to disciplinary processes even where the facts are the same. An employee's option of pursuing disciplinary proceedings does not curtail the employer's or state agencies' power to pursue criminal processes.
Legal principles established
#- It is the cause of action, not the existence of an employment relationship, that determines which court has jurisdiction over a dispute
- Criminal investigation or prosecution of an employee is not barred by the existence of parallel disciplinary proceedings
Court orders
#- 1.The petition is transferred to the Anti-Corruption and Economic Crimes Division of the High Court for hearing and determination
- 2.Costs of the application shall be in the cause
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution and section 12 of the ELRC Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pius Wanjala v Ethics and Anti-Corruption Commission; Sicily Kariuki, Cabinet Secretary Ministry of Health & another (Interested Parties) [2021] KEELRC 2162 (KLR)", Case Analysis (2021). Petition dated 6.11.2019 (amended 16.3.2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2162/eng@2021-02-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.