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ELRCPartially AllowedPetition dated 1st November 2023· [2024] KEELRC 623 (KLR)

Mwirigi v Cabinet Secretary, Ministry of Gender, Culture, Arts & Heritage & 2 others; Women Enterprise Fund Advisory Board (Interested Party) (Employment and Labour Relations Petition E206 of 2023) [2024] KEELRC 623 (KLR)

Employment and Labour Relations Court
13 March 2024
AMAnna Ngibuini Mwaure
4,609 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 ruled that suspending an employee indefinitely without stating clear reasons is unfair, and ordered the Women Enterprise Fund CEO reinstated with full pay.

What this practically means

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Executive summary

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The petitioner, CEO of the Women Enterprise Fund (WEF), challenged his indefinite suspension on 10 August 2023 by the Cabinet Secretary, Ministry of Public Service, Gender and Affirmative Action, arguing the suspension exceeded her mandate, was unapproved by the WEF Advisory Board, lacked evidential basis, and violated his constitutional rights including fair labour practices. He sought reinstatement, withheld pay, and damages. The respondents and interested party maintained the suspension was lawful, invoking section 51(1) of the Interpretation and General Provisions Act and Regulation 25 of the Leadership and Integrity Regulations, 2015, and was meant to pave way for EACC investigations into alleged embezzlement, backed by adverse Auditor General findings and National Assembly Committee recommendations. The court framed two issues: whether the indefinite suspension was illegal and unlawful, and whether the petitioner was entitled to reinstatement. It held the respondents had power to suspend, but the suspension letter stated no specific allegations or duration, denying the petitioner an opportunity to prepare a defence; indefinite suspension without sound reason was not a fair labour practice and amounted to constructive dismissal being unfair termination. On remedy, although reinstatement is discretionary and exceptional, the petitioner was in his final term expiring 30 September 2024 with a diligent service record, so the court reinstated him for the remainder of his term, ordered payment of withheld salaries and benefits, and awarded nominal damages of three months' salary (Kshs 723,060), plus costs of both the application and the petition.

Key legal issues

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01

Whether the indefinite suspension of the CEO by the Cabinet Secretary was illegal and unlawful

Holding

Yes. Although the 1st Respondent had the power to suspend, the suspension letter gave no specific allegations and no period, denying the petitioner a chance to prepare his defence; this breached fair labour practices and amounted to constructive dismissal/unfair termination.

Reasoning

The court found the respondents did not show the petitioner was informed of the allegations against him or given an opportunity to defend himself before suspension. The suspension letter cited only a general EACC investigation, specified no reasons or duration, and the petitioner remained on half pay indefinitely. Applying section 45(1) of the Employment Act and Article 41, the court held this could not be a fair labour practice and, following Joseph Ndungu v Mastermind Tobacco, the continued suspension amounted to constructive dismissal being unfair termination.

p. 8
02

Whether the petitioner is entitled to reinstatement

Holding

Yes. Although reinstatement is discretionary and exceptional, the petitioner was serving his final term expiring 30 September 2024, was within the three-year window, and had a clean service record, warranting reinstatement without loss of pay.

Reasoning

The court reviewed section 12(3)(vii) of the ELRC Act and section 49 of the Employment Act, noting reinstatement is not automatic but discretionary. It considered the petitioner's long and diligent service, his legitimate expectation, and that his term ran to 30 September 2024. Having found the suspension unfair and unconstitutional, the court exercised its discretion to reinstate him for the remainder of his term with full salaries and benefits.

p. 10

Legal principles established

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  • To suspend an employee without any sound reason and for an indefinite period cannot be fair labour practice.
  • Reinstatement is discretionary and not an automatic right; it is granted only in exceptional circumstances.

Court orders

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  1. 1.Reinstatement of the petitioner to his position of chief executive officer of the interested party to the end of his term with no loss of salaries and benefits
  2. 2.The respondents and interested party to pay the petitioner his withheld salaries and benefits and to continue paying him his full salary and benefits until the end of his term
  3. 3.Nominal damages of three months' salary equivalent, Kshs 723,060/-
  4. 4.Costs of both the application and the petition to the petitioner

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 19(2), 20(2), 21(1), 22, 23, 27, 41, 47, 50(1), 159, 162, 258
  • Legal Notice No. 147 of 2007 (Women Enterprise Fund Regulations)sections 5(1), 5(3), 6(1)
  • Leadership and Integrity Regulations, 2015Regulation 25(1), section 24
  • Interpretation and General Provisions Actsection 51(1)
  • Employment Act, 2007sections 45(1), 47(5), 49(3)(a), 49(4)(a)-(m)
  • Employment and Labour Relations Court Actsection 12(3)(vii)
  • Public Service Commission Human Resource Policies and Procedures Manual for the Public Servicesection A.6(iii)
  • Public Service Commission Discipline Manual, 2022sections 4.2.2(2)(b), 4(2)
  • Civil Procedure RulesOrder 21 Rule 1; Section 1B Civil Procedure Act

Cases cited (15)

  • Joseph Ndungu vs Mastermind Tobacco (K) Ltd
    [2014] eKLR
  • Kenya Power & Lightning Company Limited VS Aggrey Lukorito Wasike
    [2017] eKLR
  • James Musembi Mweu VS Buzeki Enterprises Limited
    [2014] eKLR
  • Waruinge v Chuna Cooperative & Credit Society
    ELRC Cause 184 of 2019
  • Kipkepe Limited v Peterson Ondieki Tai
    [2016] eKLR
  • Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019
    [2020] eKLR
  • Bryan Mandila Khaemba v Chief Justice and President of the Supreme Court of Kenya & another
    [2019] eKLR
  • Maureen Cherono Nyigei v Chief Justice and President of the Supreme Court of Kenya & another
    [2021] eKLR
  • Rebecca Ann Maina & 2 others v Jomo Kenyatta University of Agriculture and Technology
    [2014] eKLR
  • Kenya Revenue Authority v James Omondi Were
    [2020] eKLR
  • National Bank of Kenya vs. Samuel Nguru Mutonya
    [2019] eKLR
  • National Bank of Kenya Limited vs Anthony Njue John
    [2019] eKLR
  • Kenya Airways Limited vs Aviation & Allied Workers Union Kenya & 3 others
    [2014] eKLR
  • Cofiee Board of Kenya Vs. Thika Cofiee Mills Limited & 2 Others
    [2014] eKLR
  • Mary Chemweno Kiptuii vs Kenya Pipeline Company Limited
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act, Article 162(2) of the Constitution of Kenya, 2010

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, "Mwirigi v Cabinet Secretary, Ministry of Gender, Culture, Arts & Heritage & 2 others; Women Enterprise Fund Advisory Board (Interested Party) (Employment and Labour Relations Petition E206 of 2023) [2024] KEELRC 623 (KLR)", Case Analysis (2024). Petition dated 1st November 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/623/eng@2024-03-13

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