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ELRCStruck OutNot stated in the judgment· [2025] KEELRC 1284 (KLR)

Njako v Competition Authority of Kenya & another (Employment and Labour Relations Petition E136 of 2024) [2025] KEELRC 1284 (KLR)

Employment and Labour Relations Court of Kenya
7 May 2025
HWHellen Wasilwa
2,703 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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The Employment Court struck out an employee's challenge to a proposed surcharge because she went to court before the surcharge took effect and before exhausting internal remedies.

What this practically means

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Executive summary

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The Petitioner, an employee of the 1st Respondent (a state corporation identified by the reference 'CAK'), petitioned the court challenging a board resolution adopted on 31st January 2024 to surcharge her Kshs. 1,227,769.20 (or 1,277,769.20 as elsewhere stated) for failure to submit back-to-office reports for foreign trips to Geneva and Thailand. She sought a declaration that the decision contravened Articles 10, 19(2), 20(2), 21(1), 22, 23, 28, 35, 41, 47 and 50(1) of the Constitution, an order of judicial review quashing the decision communicated vide an Internal Memo dated 24th July 2024, repayment of any deductions, general damages and costs. She argued she had surrendered her Daily Subsistence Allowance which was approved, that the surcharge would leave her without salary for about 12 months, and that the Respondents violated fair administrative action under Article 47 and the Fair Administrative Action Act by failing to furnish her with the board resolution or charges. The Respondents countered that the audit was not an investigation, that affected officers were given time to file reports, and that the surcharge had not in fact been effected and the suit was premature for failure to exhaust internal mechanisms. The court (Hellen Wasilwa, J) held that the envisaged surcharge had not been effected, internal disciplinary mechanisms had not been exhausted, and no surcharge could occur without the Petitioner being allowed to defend herself. The petition was struck out with no order of costs, on 7th May 2025.

Key legal issues

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01

Prematurity/exhaustion of internal remedies

Holding

The petition was premature because the surcharge had not been effected and internal disciplinary mechanisms had not been exhausted

Reasoning

The court found the envisaged surcharge had not been effected and internal disciplinary processes were incomplete. Where adverse administrative action is anticipated rather than actual, a party should first pursue internal administrative dispute resolution mechanisms before invoking the court's jurisdiction. The court therefore struck out the petition rather than determine the constitutional claims.

p. 6
02

Right to be heard before surcharge

Holding

Any surcharge would require the Petitioner first be allowed to defend herself

Reasoning

The court observed that no surcharge could lawfully happen without the petitioner being allowed to defend herself, implying the Petitioner retained procedural protections within the internal process and the feared harm was speculative.

p. 6

Legal principles established

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  • An employee may not move to court before exhausting internal administrative dispute resolution mechanisms where the adverse administrative action is yet to take effect
  • No surcharge can be effected on an employee without affording the employee an opportunity to defend herself

Court orders

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  1. 1.The petition is struck out with no order of costs
Jurisdiction invoked
Original constitutional petition jurisdiction; the judgment does not expressly invoke a jurisdictional provision, but the petition is brought under Articles 10, 19(2), 20(2), 21(1), 22, 23, 28, 35, 41, 47 and 50(1) of the Constitution

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, "Njako v Competition Authority of Kenya & another (Employment and Labour Relations Petition E136 of 2024) [2025] KEELRC 1284 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1284/eng@2025-05-07

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