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ELRCPartially AllowedNot stated in the judgment as provided· [2024] KEELRC 1023 (KLR)

Koria v Cabinet Secretary, Ministry of Gender Culture Arts & Heritage & 6 others (Employment and Labour Relations Petition E215 of 2023) [2024] KEELRC 1023 (KLR)

Employment and Labour Relations Court
18 April 2024
3,120 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The petitioner, CEO of Bomas of Kenya, was suspended for twelve months by the Cabinet Secretary following an EACC recommendation dated 10th November 2023 arising from investigations into alleged procurement irregularities in the award of a cutlery supply tender. He moved the court by amended notice of motion dated 21st November 2023 seeking interim orders to lift the suspension, reinstate him, and restrain his termination pending the petition. The respondents opposed, arguing the application was overtaken by events, an abuse of process, and did not meet the Giella v Cassman Brown threshold; the Board stated an Ad-hoc Committee was investigating and would review the suspension by March 2024. The Public Service Commission, while guiding on the law, conceded that EACC could recommend suspension but not its duration, that the 12-month period was unreasonably long and unlawful, and that disciplinary action against a CEO ought to have been initiated by the Board. The court, applying Gatirau Peter Munya on conservatory orders, found no disciplinary provision applicable to the CEO in the Bomas manual, noted no criminal charges under section 62 ACECA had been brought, observed that the Board's self-set timelines had lapsed by mid-April 2024, and concluded the applicant had met the threshold. It granted a mandatory injunction directing the CS and the Board to unconditionally lift the suspension and immediately reinstate the applicant pending the petition, with costs in the cause.

Key legal issues

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01

Whether the applicant met the threshold for a mandatory/conservatory injunction to lift his suspension and be reinstated pending the petition

Holding

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.

Reasoning

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.

p. 7
02

Whether the EACC could lawfully recommend suspension and its duration

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.Costs be in the cause.

Authorities

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Legislation

  • Leadership and Integrity Actsections 42(7), 52(1)
  • Leadership and Integrity Regulations, 2015Regulation 25(1)(c)
  • State Corporations Act, Cap 446section 7(1)
  • Interpretation and General Provisions Act, Cap 2section 51
  • Anti-Corruption and Economic Crimes Act (ACECA)section 62
  • Constitution of Kenya, 2010Article 47
  • Fair Administrative Action Act
  • Mwongozo Code of Governance for State Corporations
  • Disciplinary Manual for the Public Service, revised 2022section 4
  • Human Resource Policies and Regulation Manual for Bomas of Kenya, revised 2016clauses 2.4.5, 10.15.4

Cases cited (6)

  • Gatirau Peter Munya versus Dickson Mwenda Kithinji & 2 others
    [2014] eKLR
  • Mike Sonko Mbuvi Gidion Kioko verses Clerk, Nairobi City County Assembly and 5 others
    [2020] eKLR
  • Mary Aliviza and Okoth Mondoh versus Ag Kenya and Secretary General of East African Community, application no. 3 of 2010
    EACS 2005-2011
  • Kenya National Examination Council vs Republic
    C.A. 366/1999
  • Kenya Guards & Allied Workers Union vs Security Guards Services and 38 others
    H.C. Misc. 1159 of 2023
  • Giella v Cassman Brown & Company Limited
    (1973) EA 358
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

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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, "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.