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ELRCPartially AllowedPetition (number not stated in judgment)· [2024] KEELRC 908 (KLR)

Ogenga v National Industrial Training Authority & another (Employment and Labour Relations Petition E225 of 2023) [2024] KEELRC 908 (KLR)

Employment and Labour Relations Court
25 April 2024
3,642 words in judgment
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The bottom line

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Kenya's Employment Court quashed NITA's interdiction of its Director General, ruling that employers must hear public officers before disciplining them—even amid corruption investigations.

What this practically means

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Executive summary

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The petitioner, Director General of the National Industrial Training Authority (NITA), was interdicted on half pay by letter dated 24 November 2023 following an EACC recommendation, based on alleged procurement irregularities in Tender No. NITA/12/2017-2018 awarded in 2018 before his appointment. He petitioned the ELRC, citing violations of Articles 27(1), 47, 50(1) and 236(b) of the Constitution. EACC raised a preliminary objection arguing the ELRC lacked jurisdiction since the dispute concerned corruption matters, contending the Maraga Directions reserved such petitions for the ACEC Division of the High Court. The court dismissed the objection, holding that interdiction of a public officer is an employment matter within the ELRC's exclusive jurisdiction, following Mugendi and USIU. On the merits, the court found the interdiction unlawful: the letter contained no specific charges, no request to show cause, no stated period of interdiction, and the petitioner was neither heard before the interdiction nor on his appeal. EACC's later-asserted allegations (receiving goods under a terminated contract and directing payment of Kshs.4,800,654) were never put to the petitioner. The court held the Board abdicated its mandate by blindly following instructions from third parties, violating Articles 236(a) and (b), 50(1), 47(1) and 27(1). The petition was allowed: a declaration of unlawfulness, certiorari quashing the interdiction, mandamus reinstating the petitioner with full salary and benefits; damages were refused as unnecessary. The 1st respondent was ordered to pay costs. Judgment delivered on 25 April 2024 by Mathews Nderi Nduma, Judge.

Key legal issues

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01

Jurisdiction of the ELRC versus the ACEC Division of the High Court

Holding

The court has jurisdiction; interdiction of a public officer pending investigation is an employment and labour relations matter

Reasoning

Relying on the Court of Appeal decision in Prof Daniel N Mugendi adopting Majanja J in USIU v Attorney General, the court held the Industrial/ELRC is a specialist court with exclusive domain over employment matters under section 12 of the Industrial Court Act, and jurisdiction to enforce constitutional rights incidental to employment. The Maraga Directions and the corruption angle did not oust that jurisdiction. The preliminary objection was dismissed.

p. 6
02

Lawfulness of the interdiction

Holding

The interdiction was unlawful, unfair, arbitrary, unreasonable and disproportionate

Reasoning

The interdiction letter contained no specific charges, no request to show cause, no stated period of interdiction, no reference to the Board meeting that decided it, and the petitioner was not heard before or on his appeal. EACC's stated ground in its replying affidavit (terminated contract, receipt of goods and payment) was never cited to the petitioner. The Board also abdicated its mandate by blindly following instructions from third parties.

p. 7
03

Violation of constitutional rights

Holding

Violations of Articles 236(a) and (b), 50(1), 47(1) and 27(1) established

Reasoning

The petitioner was subjected to disciplinary action without due process contrary to Article 236(b), denied a hearing contrary to Article 50(1), denied fair and expeditious administrative action contrary to Article 47(1) and section 4 of the Fair Administrative Action Act, and denied equal protection as he alone was interdicted while the Board followed third-party instructions. The suspension persisted although he had not been charged five years after the alleged conduct.

p. 7

Legal principles established

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  • The ELRC has jurisdiction to hear challenges to interdiction of public officers and to enforce constitutional rights ancillary to employment and labour relations
  • EACC may direct suspension of a public officer under section 42(7) of the Leadership and Integrity Act only on grounds of necessity, i.e. risk of interference with investigations
  • A public officer interdicted or subjected to disciplinary action must be afforded due process, including notice of specific allegations and an opportunity to be heard, failing which Article 236(b) is violated

Court orders

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  1. 1.Declaration that the decision of the 1st respondent to interdict the petitioner by letter dated 24th November 2023 is unlawful and unfair
  2. 2.Order of certiorari quashing the interdiction of the petitioner by the letter dated 24th November 2023 and any resolution and decision resulting therefrom
  3. 3.Order of mandamus directing the 1st respondent to reinstate the petitioner to his employment including full salary and employment benefits from the date of interdiction
  4. 4.Refusal of an award of damages, the reinstatement remedies being deemed sufficient
  5. 5.1st respondent to pay the costs of the suit

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 24(1)(e), 27(1), 41, 47, 47(1), 50(1), 73, 162(3), 232(1), 236(a) and (b)
  • Leadership and Integrity Act, No. 19 of 2012Sections 8, 42(7), 52(1)
  • Leadership and Integrity Regulations 2015Regulations 25 and 25(2)
  • NITA Human Resource Policy ManualClause 11.16
  • Employment and Labour Relations Court ActSection 12
  • Industrial Court Act 2011Section 12
  • Anti-Corruption and Economic Crimes Act (ACECA)not specified
  • Fair Administrative Action Act, 2015Section 4
  • Public Officers Ethics ActPart III (General Code of Conduct and Ethics)
  • Employment Actnot specified

Cases cited (2)

  • Prof Daniel N Mugendi and Kenyatta University, Benson Wairegi, Prof Olive M. Mugenda
    2013 eKLR
  • United States International University (USIU) v The Attorney General & Others
    Petition No. 170 of 2012
Jurisdiction invoked
Article 162(3) of the Constitution and section 12 of the Industrial Court Act / ELRC Act - exclusive jurisdiction over employment and labour relations disputes

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, "Ogenga v National Industrial Training Authority & another (Employment and Labour Relations Petition E225 of 2023) [2024] KEELRC 908 (KLR)", Case Analysis (2024). Petition (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/908/eng@2024-04-25

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