Koria v Cabinet Secretary, Ministry of Gender Culture Arts & Heritage & 6 others (Employment and Labour Relations Petition E215 of 2023) [2024] KEELRC 1023 (KLR)
The bottom line
#Kenya's Employment Court reinstated Bomas of Kenya's CEO, ruling that a Cabinet Secretary cannot lawfully suspend a state corporation's chief executive without the Board first initiating due process.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant met the threshold for a mandatory/conservatory injunction to lift his suspension and be reinstated pending the petition
Yes. The court found no disciplinary provision applicable to the CEO in the BoK manual, noted the suspension was disciplinary and should have been initiated by the Board, that no criminal charges had been preferred under section 62 AECA, that EACC lacked jurisdiction to recommend the period of suspension, and that the Board's self-set timelines had lapsed. Interim mandatory injunction issued.
The court applied Gatirau Peter Munya on conservatory orders and the merits/public-interest test. It found the CS and Board merely deferred to the EACC recommendation and press release without following due process under the applicable manual and section 42(7) LIA. It also weighed the lapsed self-set timelines for conclusion of investigations and the absence of criminal charges against the applicant.
Whether the EACC could lawfully recommend suspension and its duration
EACC may lawfully recommend suspension of a public officer under investigation, but has no jurisdiction to recommend the period of suspension, which is for the employer to determine.
The PSC's replying affidavit, adopted in effect by the court, distinguished the power to recommend suspension under Regulation 25(1)(c) of the Leadership and Integrity Regulations 2015 from the power to fix its duration, which lies with the employer under the applicable discipline manual. The 12-month suspension recommended by EACC was unreasonable and unlawful.
Legal principles established
#- Suspension of a public officer pending investigations is disciplinary in nature and must be initiated by the employing board, not imposed at the instance of a third party or the Cabinet Secretary without following due process
- Conservatory orders are granted on the inherent merit of the case, bearing in mind the public interest, constitutional values and proportionate magnitudes
Court orders
#- 1.A mandatory injunction is granted directing the 1st and 5th respondents to unconditionally lift the suspension of the applicant/petitioner from employment communicated vide a letter dated 20th November 2023 and order for his immediate reinstatement, pending the hearing and determination of the petition.
- 2.Costs be in the cause.
- Jurisdiction invoked
- Original constitutional and employment jurisdiction over a petition and notice of motion seeking interim conservatory/interlocutory relief (petition pending hearing and determination)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Koria v Cabinet Secretary, Ministry of Gender Culture Arts & Heritage & 6 others (Employment and Labour Relations Petition E215 of 2023) [2024] KEELRC 1023 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1023/eng@2024-04-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.