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ELRCPartially AllowedPetition No E016 of 2022· [2024] KEELRC 2606 (KLR)

Otieno v Nkanata & 2 others; Njane & 12 others (Interested Parties) (Petition E016 of 2022) [2024] KEELRC 2606 (KLR)

Employment and Labour Relations Court of Kenya
24 October 2024
MOMAUREEN ONYANGO
3,927 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 the NGO Co-ordination Board must fix an employee's unlawful downgraded job placement and pay professionals their non-practising allowance.

What this practically means

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Executive summary

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The Petitioner, a Manager in the legal services division of the NGO Co-ordination Board, petitioned challenging the Board's 19th February 2021 resolution adopting a new organisational structure, grading and staff establishment. He sought declarations that the restructure was unlawful, unprocedural, oppressive and unfair, certiorari quashing the resolution and his own re-designation to Principal Officer, Legal Affairs, and mandamus compelling payment of a non-practising allowance to himself and the 5th and 12th Interested Parties. He alleged lack of public participation, arbitrariness, discrimination and ultra vires action under the NGOs Co-ordination Act, 1990. The Respondents countered that the Board had no prior approved structure, that the exercise followed the Fair Administrative Action Act with SCAC and ministry approval, involved staff participation, caused no loss of remuneration, and that the Petitioner participated in and implemented the new structure. They also argued the allowance claim was sub judice before the Court of Appeal. The court found the restructure largely unobjectionable since no employee suffered loss of remuneration, but held that the Petitioner's re-designation from Manager (Grade 3) to Principal Legal Officer (Grade 4) was inconsistent with the Board's own approved grading structure, as was the 5th Interested Party's placement. On the allowance, the court rejected the sub judice objection since the pending suit involved different parties and undisclosed pleadings, and held all professionals in the Board's employment entitled to the allowance under the HR Manual section 4.1.14. The court ordered a review of the implementation, payment of the allowance, and awarded the Petitioner costs against the 3rd Respondent, dismissing all other prayers.

Key legal issues

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01

Whether the restructure of the organizational structure, grading and staff establishment was unlawful

Holding

The restructuring was largely lawful, but the Petitioner's re-designation from Manager (Grade 3) to Principal Legal Officer (Grade 4) was inconsistent with the Respondent's own grading structure

Reasoning

The court analysed the conversion table and the approved grading structure (Annexure FMN 12). No employee lost remuneration and most transitions were consistent. However, the Petitioner was a Manager at Grade 3 and should have remained a manager; his re-designation to Principal Legal Officer at Grade 4 contradicted the approved grading tables, as did the 5th Interested Party's placement. The remedy was a review of implementation rather than wholesale quashing.

p. 10
02

Whether the non-practising allowance claim was sub judice

Holding

The sub judice doctrine did not apply because the pending Court of Appeal suit involved different parties and its pleadings were not disclosed

Reasoning

The Respondents relied on section 6 of the Civil Procedure Act and the Kenya National Commission on Human Rights decision, arguing that the non-practising allowance issue was pending in NEMA v Erastus Gitonga before the Court of Appeal. The court found that the pleadings in that suit were not produced and the parties before it differed from those in this petition, so no sub judice bar arose. The court held the Petitioner and all professionals in the Respondent's employment entitled to the allowance under the HR Manual section 4.1.14.

p. 11

Legal principles established

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  • A court cannot stay a suit on sub judice grounds where the parties to the alleged pending suit are not the same and its particulars have not been disclosed
  • An employee's re-designation inconsistent with the employer's approved grading structure is unlawful

Court orders

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  1. 1.That the 3rd Respondent reviews the implementation of the organizational structure, grading and staff establishment to remove the inconsistencies noted above and ensure that the staff are not disadvantaged by the implementation of the same
  2. 2.That the 3rd Respondent do pay to the Petitioner and all eligible employees non-practicing allowance
  3. 3.That the Petitioner's costs be borne by the 3rd Respondent
  4. 4.That any prayers not granted are dismissed

Authorities

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Legislation

  • NGOs Co-ordination Actsection 3; section 8(2)
  • Fair Administrative Action Actgeneral
  • Constitution of KenyaArticle 118(1)(b)
  • Civil Procedure Actsection 6

Cases cited (2)

  • National Environmental Management Authority v Erastus Gitonga & 4 Others: Law Society of Kenya & Another (Interested Parties)
    (2021) eKLR
  • Kenya National Commission on Human Rights v Attorney General: Independent Electoral and Boundaries Commission & 16 Others (Interested Parties)
Jurisdiction invoked
Constitutional petition (constitutional and Fair Administrative Action Act complaints); no specific jurisdictional article stated in the judgment

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, "Otieno v Nkanata & 2 others; Njane & 12 others (Interested Parties) (Petition E016 of 2022) [2024] KEELRC 2606 (KLR)", Case Analysis (2024). Petition No E016 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2606/eng@2024-10-24

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