Okoiti v Ethics and Anti-Corruption Commission & 2 others; Cabinet Secretary, Ministry of Water, Sanitation and Irrigation & 18 others (Interested Parties) (Employment and Labour Relations Petition E214 of 2023) [2025] KEELRC 772 (KLR)
The bottom line
#Kenya's Employment Court upheld the EACC's power to recommend 12-month suspensions of public officers under investigation, dismissing Omtatah's constitutional challenge in full.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over the petition
The Preliminary Objection was misconceived; the dispute concerns interpretation and application of section 42(7) LIA and Regulation 25 LIR governing employment relationships, falling squarely within the ELRC's jurisdiction
Relying on the Supreme Court in Kenya Tea Growers Association, the court held that the cause of action need only disclose an employment or labour dispute; the petitioner need not be an employee. Constitutional issues arising from interpretation or application of such provisions are best handled by the ELRC. The Maraga Directions could not divest a jurisdiction conferred by the Constitution and statute.
Constitutionality of section 42(7) LIA and Regulation 25 LIR
The provisions are constitutional; they specifically express the intention to limit the rights of a public officer to work and to full salary during suspension
The court read section 42(7) as permissive and subject to the Constitution, enabled by Regulations 25 and 26. Regulation 25(2) prescribes mandatory considerations for suspension, Regulation 26(1) prescribes a twelve-month investigation window and Regulation 26(2) subjects any extension beyond twelve months to leave of the court. The limitations on the right to fair labour practices and to property (half pay) are thus clear and specific.
Whether the blanket 12-month suspension recommendations violated rights
The Petitioner failed to prove specific violations; the statute contemplates case-by-case consideration by each employer
The court found the legislature intended each suspension to be considered on merit, with suspension possibly for less than twelve months. There was no evidence the recommendations were implemented or what considerations each employer made. More than fifteen months after the directive, the court had not been appraised of the status of the investigations. Publicity given to the interim measures may have been unwarranted but no specific violation was proved.
Whether EACC bypassing Boards and the National Police Service Commission invalidated the process
No; the route of communication is immaterial provided the recommendation reaches the employer vested with authority to suspend
The court found the Petitioner's supposition logical but could find no mandatory regulatory provision anchoring the contention that EACC must communicate only with Boards of State Corporations or the National Police Service Commission. The suspension power under Regulation 25(1)(c) lies with the employer on the Commission's recommendation.
Legal principles established
#- The ELRC has jurisdiction to determine the constitutional validity of a statute in employment and labour matters where the statute is at the centre of the dispute; the parties need not be employer and employee
- Where EACC's suspension recommendation eventually reaches the employer, the route of communication cannot invalidate the process
- The initial suspension of a state officer under section 42(7) LIA and Regulation 25 LIR is not subject to court supervision; only extension beyond twelve months requires leave of the court
Court orders
#- 1.The 1st Respondent's Notice of Preliminary Objection dated 4th December 2023 is dismissed
- 2.The petition is dismissed
- Jurisdiction invoked
- Section 12(1) of the Employment and Labour Relations Court Act as read with Article 162(2)(a) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okoiti v Ethics and Anti-Corruption Commission & 2 others; Cabinet Secretary, Ministry of Water, Sanitation and Irrigation & 18 others (Interested Parties) (Employment and Labour Relations Petition E214 of 2023) [2025] KEELRC 772 (KLR)", Case Analysis (2025). Petition filed 20th November 2023 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/772/eng@2025-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.