Musonye v County Government of Bungoma (Cause 28 of 2021) [2023] KEELRC 510 (KLR)
The bottom line
#A Kenyan court ruled a county government unlawfully stopped an employee's salary without any disciplinary process, ordering full arrears, damages and costs.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction - exhaustion of alternative remedies under section 77 of the County Governments Act
The court had jurisdiction notwithstanding the statutory appeal to the Public Service Commission, because the disciplinary action was a knee-jerk reaction to the claimant's complaint of mistreatment and was marked by illegality, justifying invocation of the court's residual jurisdiction.
The claimant argued that the Public Service Commission cannot award compensation for violations of Article 41 and cannot hear complaints about a series of actions and omissions rather than a decision. The respondent invoked Article 234(2)(i), section 77 of the County Governments Act and section 87(2) of the Public Service Commission Act. The court found the disciplinary action was retaliatory and irregular, that the claimant's right to fair labour practices was under threat and violated, and that the court was justified in invoking its residual jurisdiction, upholding Khaemba and Abdikadir Suleiman.
Whether the salary stoppage was procedural and lawful
The stoppage was irregular and unlawful: there was no evidence of absence from duty, the 10-day period under K.8 of the Human Resources Policies and Procedures Manual had not lapsed, the show cause letter did not disclose specific dates of absence, and the stoppage breached section 18 of the Employment Act and constituted an unfair labour practice.
The prior show cause letter of November 11, 2020 did not raise desertion of duty; desertion was raised only in the November 19, 2020 letter. Ten days had not lapsed between the two letters as K.8(1) requires. The letter of November 19, 2020 was found to be a knee-jerk reaction to the claimant's complaint to the County Secretary dated November 12, 2020, which facts were uncontroverted as the claim was undefended.
Entitlement to reliefs
The claimant succeeded; the court entered judgment with declarations of unfair labour practice, reinstatement of salary and benefits, payment of arrears, and general damages of KES 100,000 with interest.
Having found the salary stoppage irregular and the show cause letters retaliatory, and that there was no evidence of absence from work nor disclosure of specific dates of absence, the court found the claimant had succeeded. It applied Onesmus Kinyua Magoiya v Prudential Life Assurance Kenya (2022) eKLR, where breach of Article 41 attracting general damages of KES 100,000 was awarded, to award the same sum with interest from judgment.
Legal principles established
#- A court must satisfy itself of its own jurisdiction even where it is unchallenged, as without jurisdiction it must down its tools.
- Despite the doctrine of exhaustion, courts retain residual jurisdiction to intervene in exceptional circumstances where the action complained of is marred by illegality and procedural irregularities.
- Stopping an employee's salary without evidence of absence from duty and without a lawful disciplinary process is irregular, contrary to section 18 of the Employment Act and amounts to an unfair labour practice.
Court orders
#- 1.A declaration that the chronology of events particularized at paragraphs 10 to 28 of the memorandum of claim as perpetrated by the officers of the respondent against the claimant constitutes unfair labour practices against the claimant
- 2.A declaration that the withholding of the claimant's salary without any disciplinary process, suspension, interdiction and/or of his services constitutes an unfair labour practice and is unlawful
- 3.An order for an immediate reinstatement of the claimant's salary and benefits and an immediate payment of any arrears of the claimant's salary from December 2021 to date
- 4.Award of compensation damages for unfair labour practices of KES 100,000/- with interest from date of judgment to payment in full
- 5.The respondent to bear costs of the claim
- 6.Right of appeal in 30 days
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution of Kenya (employment and labour relations jurisdiction)
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.
- Arunda Oludhe v Bridge International Academies Foundation[2026] KEELRC 2780 (KLR)8 Oct 2026
Cite this brief
#Cite this brief
Caselaw, "Musonye v County Government of Bungoma (Cause 28 of 2021) [2023] KEELRC 510 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/510/eng@2023-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.