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ELRCPartially AllowedNot stated in the judgment (Notice of Motion dated 16.11.2023 in a Petition before the ELRC)· [2023] KEELRC 3068 (KLR)

Wamukota v Kenya Electricity Transmission Company Limited & 2 others (Petition E213 of 2023) [2023] KEELRC 3068 (KLR)

Employment and Labour Relations Court
30 November 2023
BOByram Ongaya
4,621 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court stopped KETRACO from enforcing a 12-month suspension and barred the employee's termination until the case is fully heard.

What this practically means

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Executive summary

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The petitioner, a senior officer of KETRACO, was suspended for 12 months by the 1st respondent's board on 15.11.2023 pursuant to a letter dated 10.11.2023 from the Ethics and Anti-Corruption Commission recommending his suspension pending investigations into alleged procurement irregularities and fraudulent payments on the KETRACO-Loiyangalani-Suswa transmission line project. He moved the ELRC by Notice of Motion seeking interim orders lifting or staying the suspension and restraining termination of his employment. The 1st and 2nd respondents filed a preliminary objection contending that the Court lacked jurisdiction under the doctrine of constitutional avoidance, that the dispute belonged to the High Court's Anti-Corruption Division, and that the supporting affidavits were defective. The 3rd respondent opposed, citing the magnitude of the investigations and public interest. The Court held that the petition was not barred by constitutional avoidance, as it involved interpretation of Chapter 6 and Chapter 13 of the Constitution, and that remedies under section 12 of the ELRC Act and the Constitution are concurrently available. It further held that it had jurisdiction because what was impugned was the employer's suspension decision, and Regulation 32 of the Leadership and Integrity Regulations could not oust the Court's jurisdiction. Applying Geoffrey Mworia and Nguruman, the Court found a prima facie case: the same project was the subject of conservatory orders in High Court Petition No. E111 of 2023, the employer had not invoked its HR Manual or contract, and the 12-month suspension suggested predetermination. The preliminary objection was dismissed and the suspension decisions were stayed pending hearing of the petition.

Key legal issues

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01

Doctrine of constitutional avoidance

Holding

The petition is not trapped by the doctrine of constitutional avoidance because it requires interpretation of Chapter 6 and Chapter 13 constitutional provisions and pleaded constitutional violations.

Reasoning

The Court explained that constitutional avoidance requires determination on statutory law without interpreting the Constitution. Here the dispute integrates leadership and integrity standards under Chapter 6 with public service protections under Chapter 13, and the petitioner pleaded violations of Articles 25, 27, 28, 29, 35, 41, 47 and 236. The remedies sought conformed with Articles 258, 22 and 23, and section 12 remedies are concurrently available in a constitutional petition.

p. 7
02

Jurisdiction of the ELRC over suspension imposed on EACC recommendation

Holding

The Court has jurisdiction because the impugned suspension relates to the contract of service between the petitioner and the 1st respondent, and Regulation 32 of the Leadership and Integrity Regulations cannot oust that jurisdiction.

Reasoning

The respondents argued the High Court (Anti-Corruption Division) was the proper forum under Regulation 32 of the Leadership and Integrity Regulations, 2015. The Court held that what is questioned is the employer's suspension decision, and being subsidiary legislation, the Regulation must comply with the parent statute and the Constitution and cannot override the right of access to the ELRC under Article 162.

p. 8
03

Whether interim relief should issue

Holding

The petitioner established a prima facie case for the interim orders; the sub judice rule and the statutory threshold under section 62 of the Anti-Corruption and Economic Crimes Act support suspending the suspension decision pending hearing.

Reasoning

Applying the principles in Geoffrey Mworia and Nguruman, the Court found the same project was already the subject of conservatory orders in High Court Petition No. E111 of 2023, so the suspension was trapped by sub judice. The employer had not shown it invoked its HR Manual or contract, and the 12-month suspension suggested unfair predetermination. The petitioner met the threshold for the orders sought.

p. 9

Legal principles established

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  • Where alleged constitutional violations entail interpretation and application of constitutional provisions, a constitutional petition is the appropriate way to approach the Court, and remedies under the Constitution and the ELRC Act are concurrently available.
  • Subsidiary legislation cannot override the right of access to courts conferred by Article 162 of the Constitution and statutes conferring jurisdiction on the ELRC.
  • An employer may suspend an employee independent of EACC investigations only by invoking its Human Resource Policy and Procedures Manual and the contract of service; section 62 of the Anti-Corruption and Economic Crimes Act places a threshold of a charge for suspension upon a corruption charge.

Court orders

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  1. 1.The preliminary objection dated 20.11.2023 is dismissed
  2. 2.Pending the hearing and determination of the application and petition, an order suspending or staying the decision of the 1st respondent contained in the letter dated 15.11.2023 suspending the petitioner
  3. 3.Pending the hearing and determination of the petition, an order suspending or staying the decision of the 3rd respondent contained in the letter dated 10.11.2023 directing the 2nd respondent to suspend the petitioner
  4. 4.Pending the hearing and determination of the petition, an order of injunction restraining the respondents from terminating the employment of the petitioner based on the impugned suspension and the two letters in issue
  5. 5.Parties to take directions for further steps for expeditious hearing and determination of the petition
  6. 6.Costs of the preliminary objection and the application in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 3, 10, 22, 23, 25, 27, 28, 29, 35, 41, 47, 48, 159(2)(d), 162, 165, 236, 258
  • Constitution of Kenya (Protection of Rights and Fundamental Freedom) Practice and Procedure Rules, 2023rules 2 and 7
  • Employment and Labour Relations Court Act, No. 20 of 2011section 12(1) and (3)
  • Employment and Labour Relations Actsection 12
  • Leadership and Integrity Actsections 4(2), 4(3), 42(7), 52(1)
  • Leadership and Integrity Regulations, 2015regulations 30 and 32
  • Anti-Corruption and Economic Crimes Actsection 62
  • Ethics and Anti-Corruption Commission Act, 2011section 11(1)(g)

Cases cited (4)

  • Geoffrey Mworia v Water Resources Management Authority and 2 Others
    [2015] eKLR
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • Norton v Shelby County
    118 US 425 (1886)
  • Eng. Antony Tawayi Wamukota and 6 Others v The Ethics and Anti-Corruption Commission, High Court Petition No. E111 of 2023
Jurisdiction invoked
Articles 3, 10, 22, 23, 47, 48 and 165 of the Constitution of Kenya 2010; section 12(1) and (3) of the Employment and Labour Relations Court Act, No. 20 of 2011

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, "Wamukota v Kenya Electricity Transmission Company Limited & 2 others (Petition E213 of 2023) [2023] KEELRC 3068 (KLR)", Case Analysis (2023). Not stated in the judgment (Notice of Motion dated 16.11.2023 in a Petition before the ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3068/eng@2023-11-30

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