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ELRCDismissedPetition (E&LRC) filed 14th February 2017· [2024] KEELRC 90 (KLR)

Nzatu v Board of Trustees National Social Security Fund & another (Constitutional Petition 8 of 2017) [2024] KEELRC 90 (KLR)

Employment and Labour Relations Court
31 January 2024
JRJames Rika
4,191 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that stepping aside based on media reports—without your employer's instruction—counts as absconding, not suspension.

What this practically means

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Executive summary

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The Petitioner, a Quantity Surveyor employed by the National Social Security Fund since 1996 and promoted to Manager, Property Development in 2011, stepped aside on 2nd April 2015 after learning from the media that he had been adversely mentioned in an EACC corruption report referenced in the President's State of the Nation address. EACC investigations into the Tassia II Housing Scheme regularization and the China Jiangxi tender found no criminal or administrative culpability, a finding concurred in by the ODPP. When the Petitioner attempted to resume duty, the Fund instead issued him a show-cause letter on six distinct allegations, and after he declined to attend a disciplinary hearing, summarily dismissed him on 31st August 2016. He petitioned for declarations of violation of Articles 10, 27, 28, 47 and 232, damages, twelve months' salary, mortgage interest, reinstatement and disqualification of the Fund's trustees. The Court held that the Petitioner left employment on his own volition; there is no provision for Presidential directives or self-imposed suspension, and his eight-month absence was itself gross misconduct. Five of the six show-cause allegations lay outside the EACC's investigative scope, so his clearance did not shield him from the employer's internal disciplinary process, which is an employment decision for the employer alone. Having declined the disciplinary hearing, he failed to prove unfair termination under Section 47(5) of the Employment Act. Reinstatement was also barred by the three-year limit in Section 12 of the E&LRC Act. The Petition was declined with costs to the Respondents.

Key legal issues

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01

Whether the Petitioner's stepping aside constituted suspension by the employer

Holding

It did not; the Petitioner left employment on his own volition on the strength of media reports of a Presidential directive

Reasoning

The employer issued no instructions to step aside; the President, State House, EACC and ODPP were not the Petitioner's employer. He was bound only by instructions from his employer, and did not establish that he stepped aside under the Human Resource Manual, the Employment Act or the Anti-Corruption and Economic Crimes Act.

p. 6
02

Whether the employer violated constitutional and statutory rights in the disciplinary process and summary dismissal

Holding

No violation; the Petitioner declined to attend the disciplinary hearing, and failed to prove unfair termination under Section 47(5) of the Employment Act

Reasoning

The letter to show cause raised matters largely outside the scope of the EACC investigations, so the Petitioner's reliance on his clearance was misguided. He was invited to a hearing with the s.41 accompaniment right, declined through advocates, and was dismissed for non-attendance, itself insubordination under s.44(4)(e).

p. 9
03

Whether Regulation 29 of the Leadership and Integrity Regulations applied

Holding

It did not; it applies to officers who were suspended, and the Petitioner was never suspended

Reasoning

The Regulation obliges a public entity to reinstate an officer suspended and later cleared by the EACC within 14 days. Since no employer suspended the Petitioner, the Regulation has no application and the argument under the Leadership and Integrity Act is misplaced.

p. 7

Legal principles established

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  • A Presidential directive or media report does not constitute lawful suspension by an employer; self-imposed absence amounts to gross misconduct under Section 44(4)(a) of the Employment Act
  • Clearance by EACC and the ODPP does not bind an employer's internal disciplinary process; administrative action is an employment decision for the employer

Court orders

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  1. 1.The Petition is declined
  2. 2.Costs to the Respondents
Jurisdiction invoked
Transferred from the High Court for want of jurisdiction; 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, "Nzatu v Board of Trustees National Social Security Fund & another (Constitutional Petition 8 of 2017) [2024] KEELRC 90 (KLR)", Case Analysis (2024). Petition (E&LRC) filed 14th February 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/90/eng@2024-01-31

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