Ahmed Sheikh Mohammed v Garissa Water & Swerage Company (Cause 447 of 2014) (Employment and Labour) [2014] KEIC 13 (KLR)

Employment and Labour Relations Court

3 June 2014

NMNzioki Wa Makau

794 words in judgment

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The bottom line

A Kenyan court ruled that a suspended public officer cannot be left without pay, awarding half salary for the suspension period.

What this practically means

Executive summary

This is an interlocutory ruling of the Employment and Labour Relations Court at Nairobi delivered on 3rd June 2014 by Nzioki Wa Makau J on a Notice of Motion dated 21st March 2014. The Claimant, an Internal Auditor suspended by the Respondent since 10th July 2013 without pay, sought an order restraining the Respondent from recruiting a replacement internal auditor, release of his salary from July 2013 to March 2014, and an interim stay of the suspension letter. The Respondent, through a Replying Affidavit of its Managing Director Mr. Abdi Haji, opposed the application, asserting the Claimant failed to discharge his duties diligently, absconded duty during a visit by Directors of Audit from Embu, played computer games at work, and was warned verbally and in writing before being invited to a formal disciplinary hearing. The court applied Clause 10(d) of the Public Service Commission of Kenya Discipline Manual 2008, applicable to county public officers pending county legislation, which entitles a suspended public officer to house, medical and other allowances. Holding that suspension without pay contravened the regulations, the court ordered the Respondent to pay the Claimant half salary from the date of suspension until he is cleared or dismissed by the Board. The court declined to uphold the blanket restraint on recruitment, permitting the Respondent to engage an interim auditor with Board approval, and suggested seconding an official from the National Audit Office if needed. Parties were granted liberty to take dates on priority basis for the substantial claim, and costs of the motion were placed in the cause.

Key legal issues

Whether a suspended public servant is entitled to pay during suspension

Holding

Yes - the applicable regulations entitle a suspended officer to allowances, and the court directed payment of half salary for the suspension period

Reasoning

The court applied Clause 10(d) of the Public Service Commission of Kenya Discipline Manual 2008, which applies to county public service employees pending county legislation. The purpose of the pay is to prevent the suspended officer from being disadvantaged in meeting obligations, and to discourage indefinite suspension since unpaid salary and allowances fall due upon resolution of the matter.

p. 2

Whether the Respondent could fill the Internal Auditor position during the suspension

Holding

The Respondent could engage an interim auditor with Board approval, notwithstanding the existing restraint on appointing a substantive replacement

Reasoning

The court noted the Claimant's services had not been terminated and the Board had yet to deliberate. It found it inconceivable the Claimant was the only officer in his department, and suggested the Respondent seek authority to second an official from the National Audit Office if necessary to facilitate audit preparation.

p. 2

Legal principles established

A public officer on suspension is entitled to be paid house, medical and other applicable allowances, and an employer cannot suspend an employee indefinitely without pay

Court orders

1.The Respondent to pay the Claimant half salary from the date of suspension until he is either cleared or dismissed by the Respondent's Board
2.Nothing bars the Respondent from engaging the services of an interim auditor, provided the Board appoints such staff member
3.Parties at liberty to take dates on a priority basis at the Registry for the substantial claim
4.Costs of the Notice of Motion to be in the cause

Authorities

Legislation

Public Service Commission of Kenya Discipline Manual 2008Clause 10(d)

Jurisdiction invoked: Employment and labour relations jurisdiction (the court applied the Public Service Commission of Kenya Discipline Manual 2008, Clause 10(d)); no specific constitutional provision cited

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Ahmed Sheikh Mohammed v Garissa Water & Swerage Company (Cause 447 of 2014)  (Employment and Labour) [2014] KEIC 13 (KLR)", Case Analysis (2014). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2014/13/eng@2014-06-03

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