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ELRCAllowedNot stated in the judgment as provided· [2023] KEELRC 510 (KLR)

Musonye v County Government of Bungoma (Cause 28 of 2021) [2023] KEELRC 510 (KLR)

Employment and Labour Relations Court
28 February 2023
4,101 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant, Chief Fire Officer of the County Government of Bungoma, sued the respondent after his salary was stopped in December 2020, alleging unfair labour practices including being forced on leave during the COVID-19 fumigation exercise he led, denial of access to his office, removal of office facilities, and harassment by the Chief Officer for Roads, Engineer Maurice Marango. He sought declarations of unfair labour practice, reinstatement of his salary, payment of arrears, general damages, costs and interest. The respondent, though duly served, filed no defence and initially did not attend, but was allowed to file submissions. It argued that the court lacked jurisdiction because section 77 of the County Governments Act required appeal to the Public Service Commission, and that the stoppage complied with section K.8 of the Human Resources Policies and Procedures Manual and section 76(6) of the County Governments Act. The court, applying the Owners of the Motor Vessel 'Lilian S' principle, confirmed its jurisdiction under Article 162(2)(a), holding that the doctrine of exhaustion notwithstanding, courts retain residual jurisdiction in exceptional circumstances of illegality and procedural irregularity, following the Khaemba and Abdikadir Suleiman decisions. It found the November 19, 2020 show cause and salary stoppage was a knee-jerk reaction to the claimant's complaint against the Chief Officer; there was no evidence of absence from duty and the K.8 procedure was not followed. The claim succeeded in full: declarations of unfair labour practice, reinstatement of salary and benefits, payment of arrears, general damages of KES 100,000 with interest, and costs to the claimant. J.W. Keli, J delivered the judgment in Bungoma on February 28, 2023.

Key legal issues

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01

Jurisdiction - exhaustion of alternative remedies under section 77 of the County Governments Act

Holding

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.

Reasoning

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.

p. 6
02

Whether the salary stoppage was procedural and lawful

Holding

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.

Reasoning

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.

p. 7
03

Entitlement to reliefs

Holding

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.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 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. 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. 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. 4.Award of compensation damages for unfair labour practices of KES 100,000/- with interest from date of judgment to payment in full
  5. 5.The respondent to bear costs of the claim
  6. 6.Right of appeal in 30 days

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(a), 234(2)(i), 41, 28, 30
  • County Governments Actsections 77, 76(6)
  • Public Service Commission Actsections 85, 86, 87(2)
  • Public Service Commission (County Government Public Service Appeal Procedures) Regulations 2016regulation 18
  • Employment Actsections 5, 17, 18
  • Human Resources Policies and Procedures Manual for the Public Service, May 2016section K.8

Cases cited (8)

  • Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd
    (1989) eKLR
  • Republic v Kenya School of Law & 2 others Exparte Kgaborone Tshlofelo Wekesa
    (2019) eKLR
  • Chief Justice and President of the Supreme Court of Kenya & another v Bryan Mandila Khaemba
    (2021) eKLR
  • Abdikadir Suleiman v County Government of Isiolo & another
    (2015) eKLR
  • Secretary, County Public Service Board & another v Hulbhai Gedi Abdille
    (2017) eKLR
  • Jonathan Spangler v Center for African Family Studies (CAFS)
    2017 eKLR
  • Kusow Billow Isaack v Ministry of Interior and Coordination of National Government and 3 others
    (2021) eKLR
  • Onesmus Kinyua Magoiya v Prudential Life Assurance Kenya
    (2022) eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution of Kenya (employment and labour relations jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.