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ELRCPartially AllowedPetition No E170 of 2022· [2023] KEELRC 3069 (KLR)

Kulundu v Chief Executive Officer, Independent Electoral and Boundaries Commission & 9 others (Petition E170 of 2022) [2023] KEELRC 3069 (KLR)

Employment and Labour Relations Court
30 November 2023
LNLinnet Ndolo
6,178 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court quashed an IEBC employee's interdiction because one official acted alone, without the Commission's disciplinary committee, violating her legal protections.

What this practically means

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Executive summary

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The Petitioner, Deputy Commission Secretary-Operations at the IEBC, was interdicted by the 1st Respondent, the Commission Secretary/CEO, by letter dated 19th September 2022 following her role in a special plenary meeting of the Commission held on 26th August 2022, convened by four Commissioners amid the post-2022 General Election split within the Commission, and following a complaint by a colleague of threats and intimidation. She petitioned the Employment and Labour Relations Court seeking declarations that the interdiction was ultra vires and violated her rights, certiorari to quash the interdiction, mandamus, and compensation. The 1st and 2nd Respondents defended the process as lawful, while the 7th to 10th Respondents confirmed they had called the meeting and instructed the Petitioner to take minutes. The Court held that disciplinary power over Commission employees vests in the Commission through its disciplinary committee, and the 1st Respondent interdicted the Petitioner without Commission approval, in breach of the IEBC Manual and the Second Schedule to the IEBC Act. The Court found the 1st Respondent had taken sides in a commission-wide grievance, acted as prosecutor and executioner, and that the Petitioner enjoyed Article 236 protection. The Court issued a declaration, quashed the interdiction, restrained the Respondents from continuing any disciplinary process on the subject matters, and awarded the Petitioner costs. Claims for compensation were not awarded.

Key legal issues

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01

Whether the 1st Respondent acted in excess of his powers in interdicting the Petitioner

Holding

Yes; the interdiction was issued without recourse to the Commission or a duly constituted disciplinary committee, contrary to the IEBC Manual and the Second Schedule of the IEBC Act

Reasoning

Section 12.3.1 of the IEBC Human Resource and Administration Policies and Procedures Manual vests disciplinary control in the Commission acting through its disciplinary committee. Paragraph 5 of the Second Schedule to the IEBC Act requires quorum decisions by Commissioners. The Court found no disciplinary committee was constituted and the matter was never discussed by the Commission, as confirmed by Cherera's affidavit with no contrary evidence.

p. 13
02

Whether the disciplinary process was irregular and capable of being interfered with by the Court

Holding

Yes; the process was irregular, the 1st Respondent acted as both complainant and prosecutor, and there was no commitment to fairness, warranting judicial intervention

Reasoning

The Court noted the general principle against interference in internal disciplinary processes but found this an exceptional case. The interdiction was issued before the lapse of the response period and responses were ignored; requests for information were disregarded. The 1st Respondent, being the complainant, took over the process. There was no commitment to do the right thing, so lifting interim orders would allow unlawful proceedings to continue to the Petitioner's detriment.

p. 14
03

Whether the Petitioner was protected for performing her functions as Deputy Commission Secretary at the 26th August 2022 plenary meeting

Holding

Yes; acting on the instructions of Commissioners to attend and take minutes, the Petitioner was protected by Article 236

Reasoning

Cherera's uncontroverted affidavit showed the meeting of 26th August 2022 was called by the 7th to 10th Respondents, who instructed the Petitioner to attend and take minutes. A public officer performing office functions in accordance with the Constitution and the law is protected from discipline under Article 236, as affirmed by the Court of Appeal in Judicial Service Commission v Njoroge.

p. 12

Legal principles established

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  • Courts may interfere with internal disciplinary proceedings where the process is irregular or stage-managed to achieve an unlawful disciplinary action
  • Article 236 of the Constitution protects public officers from being disciplined for performing the functions of their office in accordance with the Constitution and the law
  • Disciplinary powers over Commission employees are vested in the Commission, to be exercised through its disciplinary committee, not by a single officer acting alone

Court orders

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  1. 1.A declaration that the action of the 1st Respondent to interdict the Petitioner was in excess of his powers and in violation of the law and the regulations of the 2nd Respondent
  2. 2.The Petitioner's interdiction communicated by the 1st Respondent's letter dated 19th September 2022 is quashed
  3. 3.The Respondents are restrained from initiating and/or continuing any disciplinary process against the Petitioner on account of any of the issues forming the subject matter of the Petition
  4. 4.The Respondents are restrained from interfering with the Petitioner's employment on account of any of the issues forming the subject matter of the Petition
  5. 5.The Petitioner is awarded the costs of the Petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 21(1), 24, 25, 27, 28, 31, 35, 41, 46, 47(1), 48, 50, 236
  • Independent Electoral and Boundaries Commission ActSections 5, 6 and 7 of the Second Schedule; Sections 11 and 11A
  • Access to Information ActSection 41(1) & (3)
  • Fair Administrative Action ActSection 4(1)
  • Employment ActSections 41 and 43
  • Public Officer Ethics ActSection 41
  • Leadership and Integrity Act
  • IEBC Human Resource and Administration Policies and Procedures Manual, 2020Sections 11.7.1, 12.3.1, 12.10.1, 12.11.1, 12.13, 12.20.1

Cases cited (5)

  • Ann Wambui Kamuiru v Kenya Airways Limited
    [2016] eKLR
  • Fredrick Saundu Amolo v Principal Namanga Secondary School & 2 others
    [2014] eKLR
  • Mulwa Msanifu v Kenya Airways
    [2013] eKLR
  • Rebecca Ann Maina & 2 others v Jomo Kenyatta University of Agriculture and Technology
    [2014] eKLR
  • Judicial Service Commission & another v Njora)
    (Civil Appeal 486 of 2019) [2021] KECA 366 (KLR) (7 May 2021)
Jurisdiction invoked
Constitutional petition for violation of fundamental rights and freedoms under the Bill of Rights (Articles 21, 24, 25, 27, 28, 31, 35, 41, 46, 47, 48, 50, 236), together with the Independent Electoral and Boundaries Commission Act, Employment Act, Fair Administrative Action Act and Access to Information Act

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, "Kulundu v Chief Executive Officer, Independent Electoral and Boundaries Commission & 9 others (Petition E170 of 2022) [2023] KEELRC 3069 (KLR)", Case Analysis (2023). Petition No E170 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3069/eng@2023-11-30

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