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ELRCPartially AllowedPetition dated 6.11.2019 (amended 16.3.2020)· [2021] KEELRC 2162 (KLR)

Pius Wanjala v Ethics and Anti-Corruption Commission; Sicily Kariuki, Cabinet Secretary Ministry of Health & another (Interested Parties) [2021] KEELRC 2162 (KLR)

Employment and Labour Relations Court
11 February 2021
2,743 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Petitioner, a civil servant at the National Quality Control Laboratory and an advocate, petitioned the ELRC contending that the Ethics and Anti-Corruption Commission's decision to investigate him for alleged gross misconduct at his workplace usurped the powers of his employer and the Public Service Commission. He sought, inter alia, orders of certiorari and prohibition against the EACC's investigations. The EACC filed a Notice of Motion dated 16.12.2019 seeking transfer of the petition to the Anti-Corruption and Economic Crimes Division of the High Court, relying on Gazette Notices 9123 of 2015, 10263 of 2016 and 7262 of 2018 which assigned corruption and economic crimes related petitions and judicial review applications to that Division. The 1st Interested Party (the employer) supported the transfer; the 2nd Interested Party (the Law Society of Kenya) opposed it, supporting the Petitioner's contention that the dispute arises out of employment over which the ELRC has exclusive jurisdiction under section 12 of the ELRC Act and Article 162(2) of the Constitution. Makau J framed two issues: whether the petition falls within the ELRC's jurisdiction or the mandate of the High Court's Anti-Corruption Division, and whether transfer should issue. Relying on Kenya Universities Staff Union v MMUST, the court held that the cause of action, not the existence of an employment relationship, determines jurisdiction. The primary issue was the EACC's investigation of alleged criminal and unethical conduct, not employment. The court held that the ELRC lacks jurisdiction and allowed the application, transferring the petition to the Anti-Corruption and Economic Crimes Division, with costs in the cause.

Key legal issues

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01

Jurisdiction of the ELRC over a petition challenging EACC investigations of an employee

Holding

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

Reasoning

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.

p. 3
02

Whether the petition belongs in the Anti-Corruption and Economic Crimes Division of the High Court

Holding

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

Reasoning

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.

p. 4
03

Coexistence of criminal and disciplinary processes

Holding

Nothing in law bars criminal investigation or proceedings against an employee whose alleged misconduct also constitutes a criminal offence, alongside disciplinary proceedings

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The petition is transferred to the Anti-Corruption and Economic Crimes Division of the High Court for hearing and determination
  2. 2.Costs of the application shall be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 79; Article 162(2)(a); Article 162(c); Chapter Six
  • Ethics and Anti-Corruption Commission Act, 2011section 3; section 11
  • Anti-Corruption and Economic Crimes Actsections 2, 40, 47
  • Public Officers Ethics Act-
  • Leadership and Integrity Act, 2012-
  • Employment and Labour Relations Court Actsection 12(1); section 12(1)(a)
  • ELRC Procedure RulesRule 28(3)
  • Gazette Notice Number 9123 of 2015-
  • Gazette Notice Number 10263 of 2016-
  • Gazette Notice Number 7262 of 2018-

Cases cited (7)

  • Kenya Universities Staff Union v. University Council of Masinde Muliro University of Science and Technology & 2 Others
    [2018]eKLR
  • Geoffrey Kiragu Njogu v. Public Service Commission
    [2015]eKLR
  • Attorney General and Another v. Andrew Maina Githinji & Another
  • Brenda Achieng Okwach & 2 Others v. Charles Rotich SP, OCPD, Nyeri Central & 3 Others
    [2015]eKLR
  • United States International University (USIU) V. Attorney General
    [2012]eKLR
  • Daniel N. Mugendi v. Kenyatta University & 3 Others
    [2013]eKLR
  • Judicial Service Commission v. Gladys Boss Shollei & Another
    [2014]eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution and section 12 of the ELRC Act

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, "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.