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ELRCDismissedEmployment and Labour Relations Petition (ELRC, Nairobi) - amended petition dated 04.03.2025

Ajwang v Office of the County Secretary, Nairobi City County & another (Petition E029 of 2025) [2025] KEELRC 1551 (KLR)

Employment and Labour Relations Court
29 May 2025
BOBYRAM ONGAYA
2,374 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Employment Court dismissed a county officer's challenge to his suspension, ruling he should have first complained to the County Public Service Board and appealed to the Public Service Commission.

What this practically means

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Executive summary

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The petitioner, a Purchasing Officer I employed by the 2nd respondent and claiming protection under Article 236(b) of the Constitution, petitioned against his suspension by the 1st respondent (County Secretary) by letter dated 16th November 2023 following EACC investigations into alleged bribery and possession of unexplained wealth. He sought declarations that the suspension was unfair and unconstitutional, reinstatement with full backdated salary, a permanent injunction against further disciplinary proceedings, certiorari to quash the suspension letter, and damages, contending that under Section 59 of the County Governments Act disciplinary power vested in the County Public Service Board and that no written delegation to the County Secretary existed; further, that having never been charged with a corruption or economic crime, Section 62 of the Anti-Corruption and Economic Crimes Act could not sustain the suspension. The respondents maintained the suspension at half pay was lawful under Section 44(3) and Section 86 of the County Governments Act via delegated authority, and persisted because the consent/settlement of 15.07.2024/17.07.2024 in ACEC Suit No. E012 of 2023 (OS) for forfeiture of unexplained assets remained unsatisfied. The Court held Section 62 inapplicable absent charges, but found on a balance of probabilities that the Board's delegated power had been exercised, the petitioner failing to prove no delegation existed. The suspension's reasons were held valid and fair, no constitutional violation was established, and the statutory remedies before the Board and the Public Service Commission should be exhausted. The petition was dismissed with no orders on costs given the continuing employment relationship.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the suspension of the petitioner by the 1st respondent was without legal authority, the disciplinary power to suspend being vested in the County Public Service Board under Sections 59 and 86 of the County Governments Act
  2. 2.Whether Section 62 of the Anti-Corruption and Economic Crimes Act, 2003 applied to justify the suspension absent criminal charges
  3. 3.Whether the reasons for the suspension were valid and fair in light of the EACC investigations and the consent/settlement dated 15.07.2024/17.07.2024
  4. 4.Whether the petitioner's constitutional rights under Articles 27, 28, 41(1), 47(1) and 24 were violated by the suspension

Key legal issues

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01

Authority of the County Secretary to suspend a county public officer

Holding

The County Public Service Board is empowered to delegate disciplinary authority to the County Secretary, and on a balance of probabilities the 1st respondent exercised such delegated power

Reasoning

Section 86 of the County Governments Act permits the Board to delegate in writing to the county secretary among others. The petitioner alleged no written delegation existed but led no evidence from the Board proving that no delegation was made, nor did he show he made inquiry and was denied. Applying the rule that he who alleges must prove, the Court found on a balance of probabilities that the delegated power was exercised. The petitioner also failed to invoke Section 75 of the Act on irregular processes.

p. 5
02

Applicability of Section 62 of the Anti-Corruption and Economic Crimes Act to the suspension

Holding

Section 62 did not apply because the petitioner was never charged with a corruption or economic crime

Reasoning

The petitioner was suspended following EACC investigations into bribery and unexplained wealth, but was not charged with any criminal offence. The consent/settlement in ACEC Suit No. E012 of 2023 (OS) was a civil forfeiture resolution, not a criminal charge. Section 62 suspension at half pay is triggered by a charge, which was absent here.

p. 4
03

Whether the suspension violated the petitioner's constitutional rights

Holding

No violation of Articles 24, 27, 28, 41 or 47 was established

Reasoning

The reasons for the suspension arising from EACC investigations culminating in an undisputed consent order for forfeiture of unexplained assets were valid and fair. The petitioner had not shown his culpability was conclusively determined, had not responded to the show-cause letter, and had not exhausted the statutory remedies of complaint to the County Public Service Board and appeal to the Public Service Commission under the County Governments Act.

p. 6

Legal principles established

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  • A party alleging absence of a written delegation under Section 86 of the County Governments Act bears the burden of proving that no delegation was made
  • Suspension of a public officer on half pay cannot be justified under Section 62 of the Anti-Corruption and Economic Crimes Act absent criminal charges
  • Statutory remedies before the County Public Service Board and appeal to the Public Service Commission must be exhausted where available

Court orders

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  1. 1.The petition is dismissed with no orders on costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

BO
majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and constitutional (Bill of Rights) claims; reliefs included certiorari under Order and constitutional petitions under Articles 41, 47, 27, 28 of the Constitution

Relief refused

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Declaration that the suspension was unfair, unconstitutional, illegal, null and void

The Court found the reasons for the suspension valid and fair and no constitutional violation established

p. 6

Order directing respondents to allow the petitioner to resume work with full backdated salary and benefits from November 2024

Dismissal of the petition; the statutory pathways for resolving the suspension were not exhausted

p. 6

Permanent injunction restraining further disciplinary proceedings

Not granted upon dismissal of the petition

p. 6

Certiorari to quash the suspension letter dated 16th November 2023

Not granted upon dismissal of the petition

p. 6

Damages for unlawful suspension and breach of constitutional rights

No violation of rights established

p. 6

Costs

No orders on costs; in conclusion, the petition is dismissed with no orders on costs, in view that parties continue in the employment relationship

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In conclusion, the petition is dismissed with no orders on costs.
p. 6Final orders/disposition
The Court returns that upon a balance of probabilities, the 1st respondent exercised the board’s delegated power to suspend.
p. 5Delegated disciplinary authority under Section 86 of the County Governments Act
The petitioner ofiers no evidence to show the board did not delegate to the 1st respondent the power to suspend as was exercised against the petitioner.
p. 5Burden of proof on alleged absence of delegation
The statutory pathways should be exhausted in view of the long pending suspension.
p. 6Exhaustion of statutory remedies
the petitioner has been earning for a long time half salary, full housing allowance and medical insurance cover but without rendering public service and principles in Article 232 of the Constitution on economical and prudent use of public resources apply.
p. 6Public interest in economical use of public resources

Issues in the judgment

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minor

The judgment inconsistently refers to the EACC suit as 'ACEC Suit No. E012 of 2023 (OS)' and 'ACES Suit No. E012 of 2023 (OS)'

minor

Consent judgment date inconsistency: judgment refers to a settlement agreement dated 15.07.2024 and consent dated 17.07.2024, while elsewhere stating a 'Consent Judgment dated 17.07.2024'

minor

The suspension letter dated 16.11.2023 is described as being 'backdated from November 2024' in the reliefs and the replying affidavit paragraph numbering refers to a suspension letter dated 16th November 2023

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, "Ajwang v Office of the County Secretary, Nairobi City County & another (Petition E029 of 2025) [2025] KEELRC 1551 (KLR)", Case Analysis (2025). Employment and Labour Relations Petition (ELRC, Nairobi) - amended petition dated 04.03.2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1551/eng@2025-05-29

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