Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedPetition and Notice of Motion dated 9th February, 2022· [2023] KEELRC 244 (KLR)

Nandwa v National Communication Secretariat (Petition E085 of 2022) [2023] KEELRC 244 (KLR)

Employment and Labour Relations Court
1 February 2023
7,559 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~30 min to read original · ~4 min brief

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

#
The petitioner, a long-serving employee of the National Communication Secretariat designated as Accountant but discharging the functions of Head of Finance and Accounts, petitioned claiming violations of her right to fair labour practices, equal remuneration for work of equal value and fair administrative action, and sought conservatory orders against disciplinary action commenced by a show cause letter dated 8th May 2022. She sought upgrading to job grade NCS-3, special damages of Kshs 8,781,986 for underpayment, general damages and a permanent injunction. The respondent denied her capacity to sue it under section 84 of the Kenya Information and Communications Act, maintained she was an Accountant under her contract, asserted there was no basis for equal pay comparisons, and justified the disciplinary process on her travelling abroad without clearance and professional misconduct. The court framed three issues: her true position, the justification and procedure of the show cause notice, and entitlement to reliefs, additionally addressing suability. It found on a balance of probabilities that she discharged the functions of Head of Finance and Accounts notwithstanding her designation. It held the show cause notice invalid because the Communications Secretary had approved and facilitated her travel and was estopped from alleging absence of clearance, and quashed the notice and actions flowing from it by certiorari. The interdiction of 3rd June 2022 was held unsustainable for lacking a prescribed duration. The respondent was held to be a distinct government entity capable of being sued. Judgment was entered with declarations under Article 41 and on job grade, an order for underpayment from the date of the last contract with interest, and costs to the petitioner; the fixed special damages sum, general damages and permanent injunction were refused.

Key legal issues

#
01

Petitioner's true role and job grade

Holding

The petitioner, though designated Accountant, was discharging the functions of Head of Finance and Accounts and the Respondent recognized her as such

Reasoning

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.

p. 10
02

Validity of the notice to show cause dated 8th May 2022

Holding

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

Reasoning

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.

p. 12
03

Validity of the interdiction of 3rd June 2022

Holding

The interdiction could not stand as it had no defined duration and the promised investigation was never concluded or reported

Reasoning

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.

p. 14
04

Capacity of the Respondent to be sued

Holding

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

Reasoning

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.

p. 15
05

Entitlement to the reliefs sought

Holding

The petitioner obtained declarations and quashing of the show cause notice but the fixed special damages claim and general damages were refused

Reasoning

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.

p. 15

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. 1.A declaration that the Respondent violated the Petitioner's rights under Article 41 of the Constitution of Kenya, 2010
  2. 2.A declaration that the Petitioner's job grade should be consistent with her role, qualifications and experience comparable to her professional peers
  3. 3.An order of certiorari quashing the notice to show cause dated 8th May, 2022 and any action taken in furtherance thereof
  4. 4.The Respondent is directed to pay the petitioner total underpayment from the date the last contract was executed to date
  5. 5.Interest at court rates on the underpayment from date of judgment till payment in full
  6. 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.