Nandwa v National Communication Secretariat (Petition E085 of 2022) [2023] KEELRC 244 (KLR)
The bottom line
#A Kenyan court ruled an employer cannot discipline an employee for conduct it approved, and must pay for the actual role the employee performed.
What this practically means
#Executive summary
#Key legal issues
#Petitioner's true role and job grade
The petitioner, though designated Accountant, was discharging the functions of Head of Finance and Accounts and the Respondent recognized her as such
The court examined the last contract renewal letter, the Finance Policy and Procedures Manual 2021, the Annual Report and Financial Statements identifying her as Head of Finance and Accounts, vetting circulars treating her as head of the accounting unit, and the payment voucher process. The 2021 Joint Taskforce report was disregarded for lack of authentication. The court found her role and superintendence of the department established on a balance of probabilities.
Validity of the notice to show cause dated 8th May 2022
The notice to show cause was invalid because the Communications Secretary had approved and facilitated the petitioner's travel and was estopped from accusing her of travelling without clearance
The sole accusation in the notice was travelling without clearance. The respondent did not deny granting verbal authority, did not produce the circular alleged to have been breached, and did not show that clearance had to be written. Having facilitated visa procurement, the Communications Secretary could not subsequently allege lack of clearance. Any action flowing from the notice was therefore invalid.
Validity of the interdiction of 3rd June 2022
The interdiction could not stand as it had no defined duration and the promised investigation was never concluded or reported
The interdiction letter lapsed on 24th June 2022 with no investigation report filed; the respondent made allegations, the petitioner responded, and the respondent never replied to the responses. The court held interdiction must have a beginning and an end and that indefinite interdiction puts an employee on tenterhooks, an unfair labour practice.
Capacity of the Respondent to be sued
The National Communication Secretariat is a distinct government entity capable of being sued despite section 84 of the Kenya Information and Communications Act not expressly conferring legal status
The court noted the Secretariat has a distinct budget separate from the parent ministry, an Accounting Officer answerable to a board, and accounts audited by the Auditor General. Holding otherwise would expose public officers to personal liability for decisions made in official capacity. The authority relied on by the respondent, Free Pentecostal Fellowship in Kenya v KCB, was distinguished as concerning a private unincorporated religious organization.
Entitlement to the reliefs sought
The petitioner obtained declarations and quashing of the show cause notice but the fixed special damages claim and general damages were refused
The court was satisfied the petitioner should have been designated and remunerated as Head of Finance and Accounts, but declined the claimed sum of Kshs 8,781,968 because she never raised the issue with the employer, executed successive contracts, and the human resource instruments relied on were unapproved. General damages and a permanent injunction were also not demonstrated. Underpayment was awarded only from the last contract.
Legal principles established
#- An employee who discharges the functions of an office may be recognized as discharging that office notwithstanding her designation
- A person superintending the Finance and Accounting docket may veto proposed expenditure that is unbudgeted or contrary to circulars
- An employer is estopped from disciplining an employee for conduct it approved and facilitated
- Interdiction must be for a prescribed duration; indefinite interdiction is an unfair labour practice
- A government entity with a distinct budget, Accounting Officer and audited financial statements is capable of being sued even where the statute does not expressly confer legal status
Court orders
#- 1.A declaration that the Respondent violated the Petitioner's rights under Article 41 of the Constitution of Kenya, 2010
- 2.A declaration that the Petitioner's job grade should be consistent with her role, qualifications and experience comparable to her professional peers
- 3.An order of certiorari quashing the notice to show cause dated 8th May, 2022 and any action taken in furtherance thereof
- 4.The Respondent is directed to pay the petitioner total underpayment from the date the last contract was executed to date
- 5.Interest at court rates on the underpayment from date of judgment till payment in full
- 6.Costs of the suit to the Petitioner
- Jurisdiction invoked
- Constitution of Kenya, 2010 - Bill of Rights enforcement and employment and labour relations jurisdiction (Articles 41 and 23); petition filed in the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nandwa v National Communication Secretariat (Petition E085 of 2022) [2023] KEELRC 244 (KLR)", Case Analysis (2023). Petition and Notice of Motion dated 9th February, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/244/eng@2023-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.