Lilian Karanja & 114 others v County Secretary, County Government of Nakuru & 3 others [2017] KEELRC 1938 (KLR)

TIMOTHY NJOROGE 12th PETITIONER TABITHA KIBITHE 13th PETITIONER NANCY JERUTO 14th PETITIONER KELVIN KEMBOI 15th PETITIONER NICHOLAS KIPLAGAT 16th PETITIONER BENARD CHELULE 17th PETITIONER ROSE JEPKOECH 18th PETITIONER SAMUEL KOSGEY 19th PETITIONER ANN KAMAU JACKSON 20th PETITIONER JANE KIHUNA 21st PETITIONER PERIS KIHARA 22nd PETITIONER CATHERINE MUMBI MUGO 23rd PETITIONER MICHELLE KARIUKI 24th PETITIONER FANNUEL KIPROTICH 25th PETITIONER CYRUS NJOAU JACKLINE NJERI KIBUI 26th PETITIONER 27th PETITIONER FRANKLINE KIPKURUI CHERUIYOT 28th PETITIONER EDITH NJERI NDUNGU 29th PETITIONER FLORENCE WANJIKU KARANJA 30th PETITIONER JOAN KANDIE 31st PETITIONER JOYCE NYAMBURA NJOROGE 32nd PETITIONER GEORGE KARANJA KARIUKI 33rd PETITIONER JAMES KIPCHUMBA KABIRER 34th PETITIONER STEVE MWANGI 35th PETITIONER DORCAS NJERI WAMBUI 36th PETITIONER KENNEDY MUNGAI 37th PETITIONER

page 2 of 8

NJUGUNA RAHAB WAMBUI 38th PETITIONER ANN WANGUI MUYA 39th PETITIONER FRED BORE RUTTOH 40th PETITIONER SIMON KAMAU 41st PETITIONER RASHID ANYANJE JUMA 42nd PETITIONER EDWIN KETER KIBET 43rd PETITIONER PAUL KAMAU 44th PETITIONER CAROL WANJIRU GATHURA 45th PETITIONER AGNES MWANGI 46th PETITIONER ROSE KIMUNGEN 47th PETITIONER AGENES CHEPKOSKEI 48th PETITIONER DAVID KARANJA 49th PETITIONER ANDREW KARIA 50th PETITIONER JOHN MIGWI MWANIKI 51st PETITIONER VERONICA GACHAMBI 52nd PETITIONER ALEX KURIA 53rd PETITIONER JAMES CHERONO 54th PETITIONER MUGO NJOROGE 55th PETITIONER LEVYCHERUIYOT LANGAT 56th PETITIONER ABEL MUNGAI CHEGE 57th PETITIONER IBRAHIM MWANGI MACHARIA 58th PETITIONER EDWARD OTIENO OMONDI 59th PETITIONER NEWTON MWAURA MPESA 60th PETITIONER GITONGA DAVID KINYANJUI 61st PETITIONER KENNEDY ANUNDA ROGITO 62nd PETITIONER MAGDALINE KAMAU 63rd PETITIONER

page 3 of 8

OBED MWAURA 64th PETITIONER FRANCIS MAATHAI KINGORI 65th PETITIONER JAMES MWANGI NDEGWA 66th PETITIONER DAVID WAITHAKA KIMANI 67th PETITIONER ZIPPORAH NYAMOITA GWAKO 68th PETITIONER MARY W. GACHIO 69th PETITIONER JOHN KARIUKI WAINAINA 70th PETITIONER MAGARET KIRORI 71st PETITIONER CATHERINE MUIRURI 72nd PETITIONER BENARD KITUR 73rd PETITIONER KELVIN VIOLET CHACHA 74th PETITIONER STANLEY ROTICH 75th PETITIONER RUTH MURUGI 76th PETITIONER CAROL KIBUI 77th PETITIONER ALICE CHEROP TOO 78th PETITIONER ROSE LUCY WANJIKU 79th PETITIONER SAMMY KIRAGU NDERITU 80th PETITIONER CHERUIYOT KANGONGO 81st PETITIONER JACKLINE KANGONGO 82nd PETITIONER SELINA NKATHA 83rd PETITIONER MMBONE NTAGE 84th PETITIONER BENARD MWATHI MACHARIA 85th PETITIONER DANIEL NDUNGU NJOAN 86th PETITIONER ALBERT BOWEN 87th PETITIONER FRIDA MORAA 88th PETITIONER ANN KEITANY 89th PETITIONER

page 4 of 8

GLADYS AMUNDA PKEMEI 90th PETITIONER GIDEON KIPROTICH KIBET 91st PETITIONER SILVESTOR TOTONA K 92nd PETITIONER ROSELYNE CHERUTO 93rd PETITIONER KIPNGETICH TUEY 94th PETITIONER SYMON MACHARIA MUCHERU 95th PETITIONER COLLINS K. TOO 96th PETITIONER ELISHA MUCHERU 97th PETITIONER SAMUEL NDEGWA 98th PETITIONER ELIZABETH WANGUI MWANGI 99th PETITIONER ZACHARIA MWANGI NJERU 100th PETITIONER JAMES M. WAWERU 101st PETITIONER 102nd PETITIONER JOYCE SANG BEATRICE CHEPKEMOI 103rd PETITIONER RACHEL WAITHERA KIGOSI 104th PETITIONER 105th PETITIONER KEN MUNGAI NJENGAH PATRICK NGANGA 106th PETITIONER GRACE MBUSIRO CHACHA 107th PETITIONER KINGORI MWANGI 108th PETITIONER SAMUEL K. ROTICH 109th PETITIONER IAN MUKIIRA KINOTI 110th PETITIONER WINNIE NAMASAKA 112th PETITIONER PAMELA TANUI M 113th PETITIONER AGNES KARIUKI 114th PETITIONER VERONICA GACHAMBI 115th PETITIONER V

page 5 of 8

COUNTY SECRETARY, COUNTY GOVERNMENT OF NAKURU 1st RESPONDENT HON. LEE KINYANJUI, 2nd RESPONDENT NAKURU COUNTY COUNTY GOVERNMENT OF NAKURU 3rd RESPONDENT PUBLIC SERVICE BOARD, COUNTY GOVERNMENT OF NAKURU 4th RESPONDENT JUDGMENT 1. The Petitioners moved Court on 31 August 2017 alleging that the Respondents by sending them on compulsory leave through a press release on 28 August 2017 had acted unprocedurally and unconstitutionally, and thus violated their constitutional rights to fair administrative action; equal protection of the law; inherent dignity; fair labour practices; fair hearing; protection from removal from public office without due process, and the national values and principles. 2. Filed at the same time with the Petition was a motion under certificate of urgency seeking orders/conservatory orders staying the letters/action of the Respondents sending the Petitioners on compulsory leave and/or recruitment of other persons as sub-county, deputy sub-county and ward administrators. 3. On 18 September 2017, this Court gave directions as to the determination of the Petition and in this regard, the 1st Respondent filed a replying affidavit sworn Benjamin Njoroge, and the 3 rd and 4th Respondents filed Grounds of Opposition to Petition on 14 September 2017. 4. The Secretary of the 4th Respondent, James K. Mbugua filed a replying affidavit on 9 October 2017. 5. The Petitioners filed their written submissions on 29 September 2017, the 1 st and 2nd Respondents filed their submissions on 11 October 2017 and the 3 rd and 4th Respondents filed their submissions on 10 October 2017. 6. The submissions were highlighted on 19 October 2017. Whether 3rd and 4th Respondents non suited 7. The 3rd and 4th Respondents contended that they were non-suited or mis-joined to the Petition. 8. That contention has no legal foundation because in terms of section 59 of the County Governments Act, the 3rd Respondent, an organ of the 4th Respondent has been given the function over the county public service, where the Petitioners fall employees employees. Whether compulsory leave lawful 9. The Petitioners were sent on compulsory leave with pay pending investigations into their recruitment. The compulsory leave was not time bound. 10. Under the common law, a unilateral suspension of an employee with or without pay without a contractual basis would amount to a breach of contract (see McKenzie v Smith (1976) IRLR 345). The

page 6 of 8

compulsory leave was effectively a unilateral suspension. 11. The Court is also alive to the common law position that an employer is under no obligation to give or assign work to an employee. The obligation is to pay wages so long as the employment relationship subsists. 12. An employee who is paid wages may not therefore found a cause of action that he/she has not been given work. 13. In the present case, the Respondents did not cite any contractual authority or basis upon which it was decided to send the Petitioners on compulsory leave. 14. In terms of statutory or legal framework, the Respondents did not equally declare under what particular provisions of law it could anchor its decision to send the Petitioners on compulsory leave. 15. They however contended that the continued stay in the workplace of the Petitioners would have compromised the investigations. 16. Article 236 of the Constitution afford public officers certain protections on before removal from office or on disciplinary process. 17. Article 41 of the Constitution also assure employees of fair labour practices. 18. Legally, it appears that the Respondents did not act lawfully or fairly in the case of the Petitioners as the investigations which precipitated the compulsory leave could as well have been carried out while they were in the workplace. 19. It is also noteworthy that the compulsory leave had no time frame thus legitimately leading the Petitioners to allege violations of their rights as employees/public officers. 20. On the concerns by the Respondents that investigations could not proceed with the Petitioners in the work place, the Court can only observe that an employee is also under an obligation to cooperate with the employer when the employer is carrying out investigations preliminary to a disciplinary process and during the disciplinary process, when it is initiated. Such cooperation is universally implied in all contracts of employment. Conclusion and Orders 21. The declarations sought by the Petitioners were verbose to the extent of being imprecise. Court orders ought to be precise to ensure that an appropriate remedy striking at the legal injury or wrong established is granted. 22. The Court has also considered that Petitioners have continued to enjoy their remuneration. 23. In lieu of the declarations sought by the Petitioners, the Court orders (i) A declaration do and is hereby issued that the decision to send the Petitioners on compulsory leave was unlawful. (ii) The Petitioners to be allowed access to the individual work places forthwith. (iii) The Petitioners to cooperate with the Respondents in the investigations being conducted which should be completed expeditiously. 24. Considering that there are subsisting employment relationships, the Court orders each party to bear own costs.

page 7 of 8

Delivered, dated and signed in Nakuru on this 7th day of December 2017. Radido Stephen Judge Appearances For Petitioners Mr. Kipkoech instructed by Gordon Ogola, Kipkoech & Co. Advocates For 1st and 2nd Respondents Mr. Karanja instructed by Mirugi Kariuki & Co. Advocates For 3rd and 4th Respondents Mr. Kimatta instructed by Kimatta & Co. Advocates Court Assistant Nixon

page 8 of 8