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ELRCPartially AllowedNotice of Motion dated 12th October, 2021· [2022] KEELRC 1267 (KLR)

Wathinja & 3 others v County Secretary, County Government of Nyandarua & 2 others (Cause E056 of 2021) [2022] KEELRC 1267 (KLR)

Employment and Labour Relations Court
21 July 2022
DNDAVID NDERITU
4,469 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed county employers to continue disciplinary action against staff but ruled salaries must still be paid while employment continues.

What this practically means

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Executive summary

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Five employees of the County Government of Nyandarua (the 3rd Respondent) in the Department of Agriculture, Livestock and Fisheries moved the court by Notice of Motion dated October 12, 2021 seeking salary arrears, injunctions against harassment and intimidation, a stay of disciplinary action, reinstatement of salaries and costs. Their grievance arose from deployments issued by Dr Rose Oyolo as Chief Officer, Agriculture, Livestock and Fisheries - an office they contended was unlawfully created and occupied - their refusal to report to new stations, show cause letters issued by the acting County Secretary, and the withholding of their salaries. The Respondents maintained that Dr Oyolo was lawfully appointed, that Dr Maina (who had revoked some deployments) had already been terminated and lacked authority, and that the Claimants' insubordination justified disciplinary action. The court held that lawful disciplinary action does not amount to harassment and found no evidence of intimidation, refusing the injunction. It declined to stay the disciplinary process, setting aside its interim order of November 4, 2021, since no abuse of process or bad faith was demonstrated and Dr Oyolo was not a party to the cause. However, it held that the Claimants' salaries must continue to be paid as they fall due while the employment subsists, denial being a fundamental breach of contract and contrary to Article 41 of the Constitution and the Employment Act. Costs were placed in the cause and all other prayers dismissed. The ruling was delivered virtually at Nakuru on July 21, 2022 by Nderitu J.

Key legal issues

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01

Whether the court should enjoin the Respondents from harassing or intimidating the Claimants

Holding

Prayer refused; no evidence of harassment or intimidation

Reasoning

The court held that disciplinary action or investigation of alleged misconduct does not of itself amount to harassment. Reviewing the pleadings, affidavits and submissions, it found no evidence that the Respondents harassed or intimidated the Claimants, while noting the employer must accord them support and facilitation to perform their duties.

p. 6
02

Whether disciplinary action should be stayed pending the suit

Holding

Stay refused; the interim order of 4th November 2021 was set aside

Reasoning

The employer has a right to discipline employees so long as the process complies with the law and applicable policies. The show cause letters were issued by the acting County Secretary, whose authority was not questioned. The Claimants' complaint about Dr Rose Oyolo's office was irrelevant as she was not a party. No procedural or substantive error was shown, though the court cautioned the Respondents to adhere strictly to constitutional, legal and policy guidelines.

p. 8
03

Whether the Claimants' salaries should continue to be paid

Holding

Granted; salaries must be paid as they fall due while employment subsists

Reasoning

It was not disputed that the Claimants are employees of the 3rd Respondent. Withholding salary would be a fundamental breach of the employment contract and a violation of Article 41 of the Constitution and Sections 17-21 of the Employment Act. The court ordered payment of arrears and continuing monthly salaries unless the law or contract provides otherwise.

p. 9

Legal principles established

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  • Lawful disciplinary action by an employer does not amount to harassment or intimidation
  • Courts should be slow to interfere with an employer's internal disciplinary process
  • An employer must pay employees their monthly salaries as and when they fall due for as long as the employment subsists

Court orders

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  1. 1.Pending hearing and determination of the cause the Respondents to pay the Claimants any salary arrears due and owing and continue paying monthly salaries as and when they fall due except where the law, contract or terms of service provide otherwise
  2. 2.Costs of the application to be in the cause
  3. 3.All other prayers in the application denied and dismissed
  4. 4.The interim order of 4th November 2021 staying disciplinary action set aside

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 12(4); Section 12(3)(viii)
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 17
  • Employment ActSections 17, 18, 19, 20, 21
  • Constitution of KenyaArticles 41, 47

Cases cited (4)

  • George Wekesa v Multimedia University of Kenya
    (2016) eKLR
  • Nixon Bingo v The Alliance for Green Revolutionary in Africa
  • Rebecca Ann Maina & 2 others v Jomo Kenyatta University of Agriculture and Technology
    (2014) eKLR
  • Victoria Ipornai v Sanlam Kenya PLC
    (2018) eKLR
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act and Rule 17 of the Employment and Labour Relations Court (Procedure) Rules 2016

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, "Wathinja & 3 others v County Secretary, County Government of Nyandarua & 2 others (Cause E056 of 2021) [2022] KEELRC 1267 (KLR)", Case Analysis (2022). Notice of Motion dated 12th October, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1267/eng@2022-07-21

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