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ELRCPartially AllowedPetition of April 2022 (Notice of Motion dated 6th April 2022)· [2024] KEELRC 1834 (KLR)

Kaloki v Kenya Pipeline Company Limited (Petition E059 of 2022) [2024] KEELRC 1834 (KLR)

Employment and Labour Relations Court
11 July 2024
6,639 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~27 min to read original · ~4 min brief

The bottom line

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A Kenyan court stopped an employer's flawed disciplinary action, ruling it unfair to punish an employee for an audit query the Auditor General never blamed her for.

What this practically means

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Executive summary

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The Petitioner, employed as General Manager Internal Audit, challenged disciplinary proceedings initiated by the Respondent following an audit query by the Office of the Auditor General on her qualifications and the recruitment process. She sought declarations of constitutional violation, setting aside of the letters dated 29th March and 4th April 2022, a permanent injunction against the disciplinary process, and general damages. The Respondent objected on jurisdictional grounds, contending the dispute belonged under the Public Service Commission Act and Fair Administrative Action Act, and asserted the Petitioner had misrepresented her senior management experience. The court framed three issues: whether the petition met the constitutional petition threshold, whether the court could intervene in internal disciplinary matters, and entitlement to reliefs. It held the petition failed the Anarita Karimi Njeru threshold since the manner and extent of infringement were not particularised and the grievances were adequately covered by the employment statutory framework; the declaration of unconstitutionality was therefore refused. On jurisdiction, the court affirmed its power to intervene in a flawed process, finding the Respondent breached its own Human Resource Manual and the Employment Act by giving only 72 hours to respond, failing to notify charges and rights, withholding documents needed for defence, and skipping an investigation. It further found no evidence of intended misrepresentation, holding it an unfair labour practice to punish an employee for the board's failure of due diligence. The letters of 29th March and 4th April 2022 were set aside and the Respondent restrained from disciplinary action based on the audit query unless the Auditor General recommends it. Damages were refused. The Petitioner was awarded 50% of the costs.

Key legal issues

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01

Whether the Petition meets the constitutional petition threshold

Holding

It does not; the manner and extent of alleged infringements were not particularised and the grievances are employment matters adequately addressed by statute

Reasoning

The Petitioner cited Articles 10, 20, 27, 41, 47, 50 and 236 without setting out particulars of the conduct complained of. The court found that although the complaints were articulated, the manner and extent of infringement were not. All pertinent issues are addressed by the statutory employment framework, and pursuing them under the Constitution trivializes it. The Anarita Karimi Njeru standard was therefore not met.

p. 7
02

Whether the court has jurisdiction to intervene in the internal disciplinary process

Holding

Yes; intervention was justified because the process contravened the Employment Act, 2007 and the Respondent's own Human Resource Manual

Reasoning

Courts defer to internal disciplinary processes but may intervene where the process contravenes the constitution, legislation, contract or policy, or is manifestly unfair. Here the Respondent gave 72 hours to respond where the Manual requires at least 7 days, failed to notify the Petitioner of charges or her right to be accompanied, and withheld documents needed for her defence, making the process flawed.

p. 11
03

Whether the Petitioner misrepresented her experience to secure employment

Holding

No; the Respondent had all her documents, vetted and interviewed her, and no evidence proved intent to deceive

Reasoning

The Respondent was in possession of the documents on which the CV was grounded, conducted background checks, and tendered no evidence of intended deception. The audit query indicted the board's recruitment compliance, not the Petitioner, and the Auditor General did not recommend disciplinary action. Punishing the employee for the board's failure of due diligence is an unfair labour practice.

p. 12

Legal principles established

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  • A constitutional petition must set out with a reasonable degree of precision the provision infringed, the manner of infringement and the extent of the injury; where a dispute is adequately covered by statute, it should be pursued under the statutory framework.
  • Courts should not interfere with an employer's internal disciplinary process unless it contravenes the Constitution or legislation, breaches the contract or employer's policy, or is manifestly unfair and offends natural justice.
  • It is an unfair labour practice for a public service employer to punish an employee for want of diligence by its board of directors, or to take disciplinary action on an audit query where the Auditor General has not found the employee culpable or recommended action.

Court orders

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  1. 1.The Respondent's letters dated 29th March, 2022 and 4th April, 2022 are set aside.
  2. 2.The Respondent is restrained from taking any disciplinary action against the Petitioner on the basis of the audit query by the Office of Auditor General unless the office so recommends.
  3. 3.The Petitioner is awarded 50% of the costs of the Petition.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2(1) & (4), 3(1), 10(1) & (2), 19, 20, 21, 22(2), 23, 27, 28, 41, 47, 48, 50, 73, 159, 236, 259
  • Public Service Commission ActSection 74
  • Fair Administrative Action ActSections 3 and 9(2)
  • Employment and Labour Relations Court Actnot specified
  • Employment Act2007, provisions germane to hearing and facilitation of an employee facing disciplinary hearing
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (35)

  • Anarita Karimi Njeru V Republic
    (1976-1980) KLR 1272; (1979) eKLR
  • Mumo Matemu's case
    (2013) eKLR
  • Geofirey Mworia V Water Resources Management Authority
    (2015) eKLR
  • Kamau V Kenya Accreditation Service (John Mburu Kamau V Kenya Accreditation Service)
    (2021) KEELRC 8 (KLR)
  • Jane Achieng & another V University of Nairobi
    (2015)
  • Judicial Service Commission V Gladys Boss Shollei & another
    (2014) eKLR
  • Philip K. Tunoi V Judicial Service Commission & another
    (2016) eKLR
  • Sibiah Stella Otieno V Cabinet Secretary, Ministry of Interior & Co-ordination of National Government & 7 others
    (2021) eKLR
  • Republic V Kenya School of Law & 2 others ex parte Juliet Wanjiru Njoroge & 5 others
    (2014) eKLR
  • Anthony Mkala Chitavi V Malindi Water & Sewerage Co. Ltd
    (2013) eKLR
  • Mundia Njeru Gateria V Embu County Government & 3 others
    (2013) eKLR
  • Esther W. Kiege V Kenya Forest Service & another
  • Cecilia Karuru Ngayu V Barclays Bank of Kenya & another
    (2016) eKLR
  • Grace A. Omolo V Attorney General & 3 others
    (2012) eKLR
  • Miguna Miguna V Permanent Secretary, Ofice of the Prime Minister & the Attorney General
    (2011) eKLR
  • Chief Justice & President of the Supreme Court of Kenya & another V Khaemba
    (Civil Appeal 522 of 2019) (2021) KECA 322 (KLR)
  • Alfred Nyungu Kimunguni V Bomas of Kenya Ltd
    (2013) eKLR
  • Evans Otieno Nyakwana V Cleophas Bwana Ongaro
    (2015) eKLR
  • Joseph Gitau & 2 others V Ukay Estate Ltd
    HCCC No. 813 of 2004
  • Selvara Jan V Race Relations Board
    (1976) 1 ALL ER
  • CFC Stanbic Bank Ltd V Danson Mwashako Mwakuwona
    (2015) eKLR
  • Nyongesa & another V Egerton University College
    (1990) KLR 692
  • Sister Sarah Adipo V Teachers Service Commission
    (2019) eKLR
  • Mulwa Msanifu Kombo V Kenya Airways
    (2013) eKLR
  • Kiama Wangai V Egerton University
    (2016) eKLR
  • Kiambu County Tenants Welfare Association V Attorney General & another
    (2017) eKLR
  • Josphat Koli Nanok & another V Ethics & Anti-Corruption Commission
    (2018) eKLR
  • Stephen Nyarangi Onsom & another V George Magoha & 7 others
    (2014) eKLR
  • Albert Chaurembo & others V Maurice Munyao & 148 others
    (2019) eKLR
  • Republic V County Secretary and Head of Public Service Bomet County & another Ex parte Bernard Sowek
    (2017) eKLR
  • William Odhiambo Ramogi & 3 others V Attorney General & 4 others
    (2021) eKLR
  • Eustace Muriithi Njeru V Energy Petroleum Regulatory Authority
    (2020) eKLR
  • Stella Nkatha Kebongo V Barclays Bank Ltd
    (2016) eKLR
  • Agnes Ongadi V Kenya Electricity Transmission Co. Ltd
    (2016) eKLR
  • Regent Management Ltd V Wilberforce Ojiambo Oundo
    (2018) eKLR
Jurisdiction invoked
Articles 22(2), 23, 41, 47 and 50 of the Constitution of Kenya, 2010; Employment and Labour Relations Court Act, 2011

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, "Kaloki v Kenya Pipeline Company Limited (Petition E059 of 2022) [2024] KEELRC 1834 (KLR)", Case Analysis (2024). Petition of April 2022 (Notice of Motion dated 6th April 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1834/eng@2024-07-11

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