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ELRCOtherPetition dated 22nd November 2023 with Notices of Motion dated 21st and 22nd November 2023· [2023] KEELRC 3340 (KLR)

Koria v Cabinet Secretary, Ministry of Gender, Culture, Arts & Heritage & 6 others (Employment and Labour Relations Petition E215 of 2023) [2023] KEELRC 3340 (KLR)

Employment and Labour Relations Court
20 December 2023
2,542 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that a public officer suspended after a corruption recommendation can still sue in the Employment Court, not only the Anti-Corruption Division.

What this practically means

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Executive summary

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The 2nd Respondent (EACC) filed a preliminary objection against the Petitioner's Petition and two Notices of Motion challenging his suspension as Chief Executive Officer of Bomas of Kenya, following an EACC letter dated 10th November 2023 recommending his suspension over alleged corruption and economic crime, and the Cabinet Secretary's suspension letter of 20th November 2023. EACC argued that the ELRC lacked jurisdiction because the suspension flowed from Section 42(7) of the Leadership and Integrity Act and Regulation 25 of the Leadership and Integrity Regulations, 2015, and relied on the Maraga Directions directing corruption and economic crime petitions to the Anti-Corruption and Economic Crimes Division of the High Court, citing Adrian Kamotho Njenga, Republic v Karisa Chengo and Kenya Universities Staff Union. The Petitioner maintained the dispute concerned his contract of service and disciplinary process as an employee. The court analysed Article 165(3), Article 162(2) and Section 12 of the ELRC Act, and held that the suspension was issued by the 1st Respondent in exercise of the employer's disciplinary power, so the Petition and applications were premised on an employer/employee relationship within the ELRC's exclusive jurisdiction. The court applied Okiya Omtatah Okoiti and Eng Antony Tawayi Wamukota and declined the preliminary objection. For personal reasons and impending leave, the judge directed the matter to proceed before another judge of the Division, to be mentioned before the Principal Judge, Hon. Justice Byram Ongaya, on 13th February 2024, and extended interim orders to that date.

Key legal issues

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01

Jurisdiction of the ELRC over suspension of a public officer recommended by EACC under Section 42(7) of the Leadership and Integrity Act

Holding

The ELRC has jurisdiction because the suspension was effected by the employer in exercise of disciplinary power and is premised on the contract of service

Reasoning

The court distinguished the EACC recommendation from the actual suspension, which was effected by the Cabinet Secretary as employer. Since the Petition and Motions are premised on suspension of a contract of service between the Petitioner and Bomas of Kenya, the dispute falls within Article 162(2) and Section 12 of the ELRC Act, and the employee's access to the court must be safeguarded.

p. 6
02

Whether the Maraga Directions oust the ELRC's jurisdiction over the Petition

Holding

The court implicitly rejected the objection, holding the matter to be an employment dispute within its jurisdiction notwithstanding the corruption-related recommendation

Reasoning

Although the 2nd Respondent argued that petitions on corruption and economic crime matters must go to the Anti-Corruption and Economic Crimes Division of the High Court, the court found the impugned suspension was a disciplinary act of the employer, not a challenge to EACC's investigations, and so the dispute belongs to the ELRC.

p. 6

Legal principles established

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  • Where a public officer's suspension is issued by the employer in exercise of disciplinary power, the dispute is an employment and labour relations dispute within the exclusive jurisdiction of the ELRC

Court orders

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  1. 1.The preliminary objection is declined
  2. 2.The parties will proceed with the hearing of the application and petition before any other judge of the Division
  3. 3.Case to be mentioned before the Principal Judge Hon. Justice Byram Ongaya on 13th February, 2024 for allocation and further directions
  4. 4.Interim orders extended to 13th February, 2024

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 41, 159(2)(d), 162, 162(2), 165(3), 48
  • Employment and Labour Relations Court ActSections 12(1), 12(5)
  • Employment ActSection 12(5)
  • Anti-Corruption and Economic Crimes Act (ACECA)not specified
  • Leadership and Integrity Act (LIA)Section 42(7)
  • Leadership and Integrity Regulations, 2015Regulation 25
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (6)

  • Adrian Kamotho Njenga v Attorney General; Judicial Service Commission & 2 others (Interested Parties)
    [2020] eKLR
  • Republic v Karisa Chengo & 2 others
    [2017] eKLR
  • Kenya Universities Staff Union v University Council of Masinde Muliro University of Science and Technology & 2 others
    [2018] eKLR
  • United States International University (USIU) v Attorney General
  • Okiya Omtatah Okoiti v Selection Panel for the National Land Commission & 3 others; Gershom Otachi & BW'omanwa & 7 others (Interested Parties)
    (2019) eKLR
  • Eng Antony Tawayi Wamukota v Kenya Electricity Transmission Company Limited & Others
    unreported
Jurisdiction invoked
Article 162(2) of the Constitution; Section 12 of the Employment and Labour Relations Court 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, "Koria v Cabinet Secretary, Ministry of Gender, Culture, Arts & Heritage & 6 others (Employment and Labour Relations Petition E215 of 2023) [2023] KEELRC 3340 (KLR)", Case Analysis (2023). Petition dated 22nd November 2023 with Notices of Motion dated 21st and 22nd November 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3340/eng@2023-12-20

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