Oire v The County Government Of Machakos & another (Cause 379 of 2020) [2022] KEELRC 47 (KLR)
The bottom line
#Kenya's Employment Court ordered Machakos County to pay a worker over Kshs. 1.8 million for cutting his salary without a hearing and leaving his disciplinary case undecided for 40 months.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of stoppage of salary without hearing
Stopping the Claimant's salary without notice or hearing breached fair labour practices and fair administrative action
The Claimant was on granted study leave which was extended; the Respondent stopped his salary in July 2018 without communication, contrary to the Human Resources Manual procedure requiring notice and an opportunity to respond. The court accepted this was unprocedural and infringed Articles 41 and 47.
Lack of jurisdiction of the disciplinary organs over a seconded officer
The Chief Officer, Medical Services and the Human Resources Advisory Committee lacked mandate to discipline the seconded Claimant
As a seconded officer, disciplinary control vested in the Public Service Commission as delegated to the County Public Service Board, which could not delegate further. The Committee's actions were ultra vires, rendering the process a nullity and leaving only a court to remedy the breach.
Exhaustion of PSC appeal remedy under Section 77
The exhaustion argument failed because the disciplinary process was itself without mandate
The Respondents argued the Claimant should have appealed to the PSC under Section 77 of the County Governments Act. The court held the appeal authorities had no bearing because the initiating officers had overstepped their mandate, so only a court could remedy the breach.
Inordinate delay in disciplinary process
The 40-month unconcluded disciplinary process violated Article 47
Regulation G33(13) of the Code of Regulations requires disciplinary proceedings to be concluded within six months. Over 40 months after the hearing, no verdict had been delivered, amounting to an egregious, unexplained delay and an unfair labour practice warranting constitutional compensation.
Legal principles established
#- A prolonged and unconcluded disciplinary process against an employee amounts to an unfair labour practice
- Failure to accord an employee a hearing before stopping salary and unexplained inordinate delay in disciplinary processes breaches Article 47
Court orders
#- 1.Compensation of 12 months' salary for unlawful termination of service – Kshs. 1,364,160/-
- 2.Certificate of service in strict compliance with Section 51 of the Employment Act
- 3.Kshs. 500,000/- compensation for breach of the constitutional right to prompt disciplinary action under Article 47
- 4.Costs of the suit to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 162(2)(a) of the Constitution (employment and labour relations); claim founded on Articles 41 and 47
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- County Government of Bungoma v Eliud Nyongesa Wanandaba & 8 others[2023] KECA 47 (KLR)3 Feb 2023
Cite this brief
#Cite this brief
Caselaw, "Oire v The County Government Of Machakos & another (Cause 379 of 2020) [2022] KEELRC 47 (KLR)", Case Analysis (2022). Memorandum of Claim dated 17th December 2019, Amended 10th February 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/47/eng@2022-04-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.