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ELRCPartially AllowedPetition dated 15th March 2022· [2023] KEELRC 433 (KLR)

Abdi v Governor ,Kakamega County Government & 2 others (Employment and Labour Relations Petition E004 of 2022) [2023] KEELRC 433 (KLR)

Employment and Labour Relations Court of Kenya
16 February 2023
6,672 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that only your actual employer can suspend or discipline you—anyone else's suspension letter is void, and you get paid.

What this practically means

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Executive summary

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The Petitioner, formerly Chief Executive Officer of the Kakamega County Water and Sanitation Company Limited (KACWASCO), was suspended by the 1st Respondent's letter dated 7th February 2022 over allegations that he misrepresented a Board resolution in instructing the company's bankers to change account signatories. He petitioned for conservatory orders, declarations that the suspension and disciplinary process violated his rights under Articles 41 and 47 of the Constitution, and compensation exceeding Kshs.88 million. The respondents maintained that the petitioner was a public officer subject to county disciplinary organs, that he was accorded fair process, and that the petition failed the Anarita Karimi Njeru threshold and offended the doctrine of constitutional avoidance. The court framed four issues. It held the petition met the constitutional pleading threshold, and rejected the constitutional avoidance objection as raised too late, holding it had original jurisdiction over constitutional violations of employees. Applying Salomon v Salomon, it found the petitioner's employer was KACWASCO, a separate legal entity, and the appointment letter bound only the petitioner and the 2nd respondent; consequently, the 1st and 3rd respondents were strangers to the employment, their suspension letter and disciplinary process were null and void ab initio, and Articles 41 and 47 were violated. Judgment was entered jointly and severally: the suspension and disciplinary proceedings were declared void, revoked and set aside; withheld salary from February 2022 to judgment was awarded at KES 4,965,714.20 subject to statutory deductions; the petitioner was ordered to resume duties within seven days; and costs with interest were awarded. Broader compensation claims, including salary to age 60 and general damages, were refused as the withheld salary was deemed sufficient. A 30-day stay of payment was granted.

Key legal issues

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01

Whether the petition met the Anarita Karimi Njeru constitutional petition threshold

Holding

The court found the petitioner met the threshold by citing the constitutional provisions violated and the manner of violation.

Reasoning

The court reviewed Anarita Karimi Njeru, Mumo Matemu and Dr Rev Timothy Njoya on precision in pleading constitutional violations. Despite the respondents' objection, the court held on balance of probabilities the petitioner pleaded Articles 41 and 47 violations with sufficient particularity and evidence, and declined to strike out the petition.

p. 9
02

Whether the doctrine of constitutional avoidance barred the petition

Holding

The objection came too late and the court held it had original jurisdiction to determine constitutional violations of employees however brought to court.

Reasoning

The respondents invoked constitutional avoidance relying on Communication Commission of Kenya v Royal Media Services. The court noted the Supreme Court in that case still considered the merits, found the objection raised too late in the day, and held it would be a great injustice to strike out a petition where specific violations were cited with evidence.

p. 9
03

Whether the 1st and 3rd Respondents had authority to discipline the petitioner

Holding

They had no such authority; the employer was the 2nd respondent, a separate corporate entity, and the suspension and disciplinary process were void ab initio.

Reasoning

Applying Salomon v Salomon, the court held the 2nd respondent is a legal entity distinct from its shareholder, and the appointment letter expressly constituted a contract between the petitioner and the 2nd respondent. Section 19(2) of the Kakamega County Water and Sanitation Services Act governs the CEO's appointment; the County Public Service Board had no power to interfere with those terms.

p. 11
04

Whether the petitioner's rights were violated

Holding

The suspension without pay and the void disciplinary process violated the petitioner's rights to fair labour practices and fair administrative action under Articles 41 and 47.

Reasoning

Having found the suspension and disciplinary proceedings void ab initio because they were initiated by parties who were not the employer, the court held it followed that the petitioner's rights to fair labour practice and fair administrative action were violated. The suspension without pay was also found oppressive.

p. 12

Legal principles established

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  • Only the employer has disciplinary control and powers over the employee; a company is a separate legal entity from its shareholders.
  • A court will only interfere with an employer's internal disciplinary process where it is marred with irregularities and illegalities.
  • The judgment does not bar the employer from initiating disciplinary process where there is a valid reason, provided it is done within the law and the contract.

Court orders

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  1. 1.A declaration that the suspension of the petitioner vide the letter dated 7th February 2022 by the 1st Respondent was unlawful and void ab initio, and that the purported disciplinary proceedings initiated by the 1st and 3rd respondents were void ab initio.
  2. 2.A declaration that the petitioner's right to fair labour practices and fair administrative action has been violated.
  3. 3.The suspension of the petitioner and the disciplinary proceedings are revoked, lifted and/or set aside.
  4. 4.All salaries and benefits withheld from February 2022 on account of the unlawful suspension to date of judgment be released to the petitioner forthwith.
  5. 5.Award of KES 4,965,714.20 (KES 395,000 x 12 months plus 16/28 days x 395,000), payable subject to statutory deductions, as sufficient compensation for the violations.
  6. 6.An order for the petitioner to resume duties as Chief Executive Officer of the 2nd respondent within 7 days of judgment without loss of benefits, with the 2nd respondent facilitating resumption.
  7. 7.Costs of the petition awarded to the petitioner with interest on the award from the date of judgment.
  8. 8.Stay of 30 days for payment of the monies only.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2, 3, 4, 10, 19, 20, 21, 22, 23, 25, 27, 28, 41, 47(1), 50, 73, 165, 200, 235(1), 236, 258(1)
  • Employment ActGeneral (as pleaded and incorporated in the employment contract)
  • County Governments Act, 2012Sections 6(5)(a), 59(1)(c)
  • Kakamega County Water Act, 2019Section 13
  • Kakamega County Water and Sanitation Services ActSections 19, 19(2), 22(1)
  • Kakamega County Public Service Board ActSection 6(3)

Cases cited (12)

  • Anarita Karimi Njeru v Republic
    (1979) eKLR
  • David Mathu Kimingi v SMEC International PTY Limited
    (2021) eKLR
  • David Gathu Thuo v Attorney General & another
    (2021) eKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR
  • Thorp v Holdsworth
    (1876) 3 Ch. D. 637
  • Dr. Rev. Timothy Njoya vs The Hon. Attorney General and Kenya Review Authority
    Petition No. 479 of 2013
  • Leonard Otieno Vs. Airtel Kenya Limited
    [2018]
  • Communication Commission of Kenya & 5 others V Royal Media Services Limited & 5 others
    (2014) eKLR
  • Kenneth Shitsugane Olembo v County Government of Kakamega
    Petition No. E003 OF 2021
  • Daniel Namenya Naburi & 9 others v County Assembly Service Board Busia, Busia County & another
    (2019) eKLR
  • Kenya National Union of Nurses v Council of Governors and another
    (2019) eKLR
  • Salomon V Salomon & Co Ltd
Jurisdiction invoked
Original constitutional jurisdiction to determine violations of Articles 41 and 47 of the Constitution (employment and fair administrative action petition)

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, "Abdi v Governor ,Kakamega County Government & 2 others (Employment and Labour Relations Petition E004 of 2022) [2023] KEELRC 433 (KLR)", Case Analysis (2023). Petition dated 15th March 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/433/eng@2023-02-16

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