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ELRCPartially AllowedPetition dated 05.07.2023· [2024] KEELRC 796 (KLR)

Wamukota v Kenya Electricity Transmission Company Limited & 2 others (Petition E213 of 2023) [2024] KEELRC 796 (KLR)

Employment and Labour Relations Court
8 April 2024
BOByram Ongaya
3,894 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that KETRACO suspended its employee unfairly on an anti-corruption agency's recommendation alone, and ordered him reinstated with full pay.

What this practically means

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Executive summary

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The petitioner, General Manager, Design & Construction at KETRACO, petitioned the ELRC challenging his suspension on 15 November 2023, effected by the 1st respondent's Board pursuant to a recommendation by the EACC (3rd respondent) in connection with investigations into the KETRACO-Loiyangalani-Suswa transmission line contract with Isolux Ingenieria S.A involving an alleged loss of Kshs. 18 billion. The 1st and 2nd respondents raised a jurisdictional objection founded on constitutional avoidance and admitted that no notice to show cause was issued, contending that none was required since no disciplinary proceedings had commenced. The EACC defended its recommendation as necessary to safeguard investigations. The Court reaffirmed its exclusive original jurisdiction under section 12 of the Employment and Labour Relations Act and Articles 22, 162(2)(a) and 165(5)(b) of the Constitution, applying the Supreme Court's decision in Kenya Tea Growers Association v NSSF Board of Trustees. On the merits, the Court held that suspension under section 42(7) of the Leadership and Integrity Act is subject to constitutional and regulatory safeguards, including Article 236(b) (due process), section 71 of the Public Service Commission Act, 2017 and clause 11.13 of the respondent's HR Manual, none of which were satisfied. The suspension was declared irregular, unprocedural, illegal, unconstitutional and null and void ab initio. The Court ordered unconditional revocation of the suspension, reinstatement with payment of accrued salaries and benefits, revocation of the impugned decisions and letters, and restrained termination based on the illegal suspension. Damages were refused since the petitioner remains in service. Costs were awarded against the 1st respondent.

Key legal issues

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01

Jurisdiction of the ELRC notwithstanding the constitutional avoidance objection

Holding

The Court has exclusive original jurisdiction over the petition; no alternative remedy establishing constitutional avoidance was demonstrated

Reasoning

The objection had been addressed in the Court's ruling of 30.11.2023. The dispute arose from the sole employment relationship between the 1st respondent and the petitioner. Guided by the Supreme Court's decision in Kenya Tea Growers Association v NSSF Board of Trustees, the ELRC may determine constitutional questions arising within disputes reserved to it under Article 162(2)(a).

p. 5
02

Lawfulness and fairness of the suspension made solely on the EACC's recommendation

Holding

The suspension was irregular, unprocedural, illegal and unconstitutional

Reasoning

Section 42(7) of the Leadership and Integrity Act applies subject to the Constitution and regulations. Article 236(b) prohibits disciplinary action without due process; section 71 of the Public Service Commission Act and clause 11.13 of the Manual prescribe preconditions for suspension which were not met. No show-cause notice was given and the HR Advisory Committee never deliberated.

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Adequacy of statutory framework for dealing with unethical public officers

Holding

Adequate statutory provisions exist; punishment must follow prescribed safeguards through the lawful disciplinary authority

Reasoning

The Public Officer Ethics Act, 2003 is the primary legislation on public officers' ethics and provides mechanisms for investigation and disciplinary action. Suspension free from prevailing safeguards amounted to unlawful, unconstitutional and summary removal from office, as admitted by the 1st and 2nd respondents.

p. 8

Legal principles established

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  • No public officer may be summarily removed from public office except in accordance with constitutional, statutory and policy safeguards and only through lawful exercise of disciplinary control
  • A suspension of a public officer imposed in breach of Article 236(b), Article 47, Article 41, statutory preconditions and applicable policy criteria is unconstitutional

Court orders

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  1. 1.Declaration that the suspension of the petitioner was irregular, unprocedural, illegal, unconstitutional hence null and void ab initio
  2. 2.The 1st respondent directed to unconditionally revoke the suspension of the petitioner from employment and order for his immediate reinstatement or resumption of duty
  3. 3.The 1st respondent directed to pay the petitioner any pending salaries, allowances and benefits accrued to him while on the impugned suspension
  4. 4.Order revoking the letter dated 15th November 2023 suspending the petitioner
  5. 5.Order revoking the decision of the 2nd respondent contained in the letter dated 15th November 2023 directing the Board of the 1st respondent to suspend the petitioner
  6. 6.Order revoking the decision of the 1st respondent contained in the letter dated 15th November 2023 suspending the petitioner
  7. 7.Order restraining the respondents from terminating the employment of the petitioner based on the illegal suspension
  8. 8.The petitioner's costs of the petition to be paid by the 1st respondent and the respondents to bear their own costs of the proceedings

Authorities

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Legislation

  • Employment and Labour Relations Actsection 12
  • Constitution of Kenya, 2010Articles 22, 41, 47, 80, 162(2)(a), 165(5)(b), 233, 234, 236(b), Chapter Six
  • Leadership and Integrity Actsections 42(7), 52(1)
  • Public Service Commission Act, 2017section 71, Part XII
  • Public Officer Ethics Act, 2003sections 35, 36

Cases cited (1)

  • Kenya Tea Growers Association and 2 others v The National Social Security Fund Board of Trustees and 7 others
    Petition E004 of 2023 as consolidated with Petition No. E002 of 2023
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Act; Articles 22, 162(2)(a) and 165(5)(b) of the Constitution

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) [2024] KEELRC 796 (KLR)", Case Analysis (2024). Petition dated 05.07.2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/796/eng@2024-04-08

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