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ELRCDismissedCause No E940 of 2021· [2025] KEELRC 1608 (KLR)

Wairioko v Mwalimu National Savings and Credit Co-Operative Society Limited (Cause E940 of 2021) [2025] KEELRC 1608 (KLR)

Employment and Labour Relations Court
25 April 2024
6,372 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld an employee's suspension without pay because her employment contract allowed it, dismissing her entire claim.

What this practically means

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Executive summary

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The Claimant, formerly Head of Human Resource and Administration (later Chief Manager Human Resource) of the Respondent Sacco, challenged her six-month suspension without pay backdated to 5th October 2021, conveyed by letter dated 25th October 2021. She sought declarations that the suspension was unfair and void ab initio, an order lifting it, payment of withheld emoluments, an injunction against termination or harassment, and costs. She argued the Respondent breached its HR Policy (which limits interdiction to three months and provides for suspension only pending investigation), that the Board and HR Committee lacked jurisdiction to suspend, and that suspension without pay violated Article 41 of the Constitution and section 41 of the Employment Act, relying on Donald C. Avude v Kenya Forest Service and Sabina Mutua v Amedo Centre Kenya Ltd. The Respondent maintained that management staff are disciplined under the Management Staff Terms and Conditions of Service, which provide for penal suspension without pay by the Board, that valid reasons existed (insubordination, negligence, gross misconduct), and that fair process was followed. The court framed five issues and held that both instruments applied to management staff; that the show cause and suspension letters matched, showing valid reasons and procedural compliance; that suspension without pay was a contractual term whose constitutionality was not pleaded; and that while backdating the suspension was irregular, it caused no prejudice. The claim was dismissed with no orders as to costs.

Key legal issues

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01

Which HR instrument governed the Claimant's disciplinary process - the HRM Policy or the Management Staff Terms and Conditions of Service

Holding

Both instruments applied to management staff; the disciplinary process under the Management Staff Terms was properly applied since the Claimant sat on the Disciplinary Committee under the Policy

Reasoning

The court read the HRM Policy together with the Management Staff Terms and Conditions of Service, noting the Policy derives its legal framework from, and should be read in conjunction with, the Management Terms. Because the Claimant, as Head of HR, was a member of the Disciplinary Committee established under Clause 9.8 of the Policy, a separate process for management staff was appropriate. The court found the Respondent correctly subjected her to the Management Staff Terms process.

p. 8
02

Whether the suspension was justified in substance and procedure

Holding

Yes - the charges in the show cause letter matched the suspension letter grounds, and the Claimant was given an opportunity to respond

Reasoning

The court compared the show cause letter and the suspension letter and found all grounds for suspension were raised in the show cause letter with an opportunity to respond. The process included a show cause, written response, disciplinary hearing before a committee, and Board determination, satisfying the applicable procedure and the rules of natural justice. Allegations of mutating charges were rejected.

p. 12
03

Whether suspension without pay contravenes Article 41 of the Constitution and section 41 of the Employment Act

Holding

The court declined to strike down the provision because the constitutionality of the clause was not pleaded; for as long as suspension is a contractual term it will be respected and enforced

Reasoning

Although the Claimant relied on Donald C. Avude v Kenya Forest Service to argue that suspension without pay is unconstitutional, the court noted she was suspended for a definite period of six months and had not sought a declaration of unconstitutionality or nullification. Bound by pleadings, the court held that contractual terms of suspension must be respected and enforced, and the prayer on this head failed.

p. 14
04

Validity of backdating the suspension to 5th October 2021 by letter dated 25th October 2021

Holding

Backdating was irregular but caused no prejudice since the defined six-month suspension period accounted for it

Reasoning

The Board's decision was made on 16th October 2021 yet suspension took effect from 5th October 2021, the hearing date. The court found this irregular but, because the suspension was for a defined period and that period was counted within the suspension, the Claimant suffered no prejudice. No relief followed from the irregularity.

p. 14

Legal principles established

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  • Suspension of an employee is not provided for in the Employment Act and an employer must prove it is provided for in the employee's terms and conditions of service and that it complied with those terms
  • Suspension may be either an intermediate measure during disciplinary process or a penalty after hearing, but in both cases must be covered in the terms and conditions of service
  • Parties are bound by their pleadings and a court cannot determine an issue not pleaded or urged before it

Court orders

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  1. 1.The Claimant's claim is dismissed in its entirety
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of KenyaArticle 41(1)
  • Employment Actsections 41, 44(4)(c), 44(4)(d), 44(4)(e)

Cases cited (2)

  • Donald C. Avude v Kenya Forest Service
    [2015] eKLR
  • Sabina Mutua v Amedo Centre Kenya Ltd
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment and Labour Relations Court Act); specific provision not 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, "Wairioko v Mwalimu National Savings and Credit Co-Operative Society Limited (Cause E940 of 2021) [2025] KEELRC 1608 (KLR)", Case Analysis (2024). Cause No E940 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1608/eng@2025-04-25

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