REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA

AT NAKURU

ELRC PETITION NUMBER E025 OF 2021

ZACHARIA MWANGI  NJERU..............................................................................PETITIONER

 -VERSUS-

COUNTY SECRETARY, COUNTY GOVERNMENT OF  NAKURU......1^ST RESPONDENT

COUNTY PUBLIC SERVICE BOARD,COUNTY                                                                         

GOVERNMENT OF NAKURU....................................................................2^ND RESPONDENT

                               (BEFORE HON. JUSTICE DAVID NDERITU)                                 

JUDGMENT

1. INTRODUCTION

1. In a petition dated 12^th October, 2021 and filed in court on  13^th October, 2021 the Petitioner herein, ZACHARIA  MWANGI NJERU, through Hari Gakinya Advocate prays as follows:-

(i) A declaration that the Respondents have jointly  discriminated against him and his employment and  that his rights have been violated by the  Respondents.

(ii) That the Respondents be compelled to pay his  salary arrears and to reinstate him in his  employment.

(iii) Costs for the petition.

2. The petition is supported by an affidavit sworn by the  Petitioner on 8^th October, 2021 with several annextures  thereto.

3. Upon service, the Respondents appointed Maureen  Litunda, Advocate to act for them and she filed a notice  of appointment dated 18^th October, 2021 on 2^nd November,  2021.

4. Further, the Respondents filed a response to the petition by  way of a replying affidavit sworn by BENJAMIN  NJOROGE, the occupant of the office of the 1^st  Respondent, sworn on 14^th December, 2021 and filed in  court on the same date with several annextures thereto,  which annextures had already been produced by the  Petitioner as annextures to his supporting affidavit.

5. The Respondents’ Counsel also filed a notice of  preliminary objection on 14^th December, 2021 dated on  even date.

6. The Petitioner had filed an interim application seeking  interim orders of reinstatement to his employment but the  same was withdrawn by consent of both Counsel on 24^th  November, 2021 in favour of proceeding with the petition  to enable an early disposal.

7. Further, it was agreed by Counsel for both sides that the  matter proceeds by way of written submissions.  Petitioner’s Counsel filed his submissions on 8^th  December, 2021 with Respondents’ Counsel filing the  response on 7^th January, 2022.  Petitioner’s Counsel filed a  reply on 1^st February, 2022.

II.    PETITIONER’S CASE

8. As distilled from the petition and the written submissions,  the Petitioner’s case in a nutshell is that he was employed  by the 2^nd Respondent as a Sub-County Administrator on  17^th April, 2015 after he applied for the said position in a  competitive process following an advertisement of the  vacancy.

9. The Petitioner states that on 22^nd September, 2016 the 1^st  Respondent wrote to him on allegations of gross  misconduct. The Petitioner responded to the said  allegations on 26^th September, 2016 wherein he denied  gross misconduct on his part.  After further exchange of  correspondences the 1^st Respondent wrote to the Petitioner  on 7^th November, 2016 as follows:-

“Arising from the foregoing, it is very clear that your representations have failed to exonerate you from all the accusations labeled against you beyond any reasonable doubt.

This office seeks to recommend for disciplinary action to be taken against you for your acts of gross misconduct and misuse of office.  However, before such line of action is contemplated, it has been found necessary to interdict you from your duties with immediate effect pending further investigations.  While on interdiction, you are entitled to half salary and should not leave your duty station without permission from your supervisor.”

10. After the interdiction the Petitioner applied for a job with  the County Assembly of Nakuru but the Respondents  failed and  or refused to cooperate in having the Petitioner  take up his new role as a Principal Administrative Officer.

11. Since his interdiction on 7^th November, 2016 the Petitioner  states that he has not been called for any disciplinary  hearing and that  he has not been informed of the outcome  of the investigations.

12. On 21^st January, 2021 the Petitioner wrote to the 1^st  Respondent enquiring about the outcome of the  investigations against his alleged gross misconduct but the  1^st Respondent did not respond thereto.  In the same letter  the Petitioner threatened to take legal action if the  Respondents failed to take remedial action.

13. It is on the basis of the foregoing that the Petitioner seeks  for the remedies set out at the onset of this judgment.

III. RESPONDENTS’ CASE

14. The Respondents’ position is captured in the replying  affidavit of BENJAMIN NJOROGE, the notice of  preliminary objection, and the written submissions by  their Counsel.

15. The Respondents argue that the petition is bad in law and  misconceived and that the Petitioner should have  challenged the interdiction in accordance with the human  resources policies and procedure manuals for the Public  Service.  The Respondent argue that the Petitioner is guilty  of offending the principle of exhaustion and as such the  Respondents argue that this court lacks jurisdiction to hear  and determine this petition.

16. It is on the basis of the foregoing that the Respondents  have prayed that this petition be dismissed with costs.

IV. ISSUES FOR DETERMINATION

17. This court has dutifully and very carefully considered the  pleadings filed, evidence placed before the court by way of  affidavits and documentary evidence in the annextures  thereto.  The court has also read the written submissions  by Counsel for both parties. The following issues  commend themselves to this court for determination:-

 (a) Does this court have the requisite jurisdiction to hear   and determine this petition?

 (b) If (a) above is in the affirmative, is the petitioner    entitled to the prayers sought?

 (c) Costs.

V. JURISDICTION

18. Jurisdiction is everything and a court that labours without  jurisdiction does so in vain.  Any orders or declarations  made by a court without jurisdiction are null and void ab  initio.  And therefore, the moment a court discovers  that   it has no jurisdiction  over the subject matter it must down  the tools and make no other step – see Nyarangi J (as he  then was) in the owners of the Vessel Lilian ‘S’ -Vs-   Caltex Oil Kenya Ltd.

19. The issue of jurisdiction of this court in dealing with the  subject matter has been raised by the Respondents in the  notice of preliminary objection (P.O). This issue is also  raised in paragraphs 15 and 16 of the replying affidavit to  the petition.  The issue of jurisdiction has also been raised  by Respondents’ counsel in her written submissions.

20. Paragraph 15 and 16 of the replying affidavit to the  petition clarify that the Respondents’ view on the lack of  jurisdiction by this court is that if the Petitioner was  dissatisfied with the decision to interdict him, as  communicated by the 1^st Respondent vide the letter dated  7^th November, 2016 the petitioner ought to have  challenged the said decision as provided for in the human  resources policies and procedure manuals.

21. However, the Petitioner, and in my view the Respondents  missed this point, did not challenge the interdiction and  what he is complaining about in this petition is that after  the interdiction the Respondents did not take any other or  further steps to resolve the issue and either terminate him  or set aside the interdiction.

22. In the letter of interdiction dated 7^th November, 2016  which is quoted verbatim in an earlier part of this  judgment, the Respondents undertook to investigate the  alleged gross misconduct by the Petitioner and take an  appropriate action.  It is now over five (5) years since, yet  the Petitioner has neither been summoned to a disciplinary  hearing nor served with a decision of the Respondents  based on the investigations promised in the letter of  interdiction as alluded to above.

23. In their pleadings and written submissions the  Respondents admit that the Petitioner is an employee of  the 2^nd Respondent who is on interdiction.  It is so stated in  paragraph 3 of the written submissions and paragraph 5 of  the response to the petition.

24. While it may be true that the Petitioner did not challenge  the interdiction in accordance with the Public Service  Human Resources Policies and Procedure Manual,  2016 and the pleadings suggest so, that does not mean that  the petitioner has no recourse to this court given that over  five years later the Respondents have not taken any steps  to finalize the matter. It is the Respondents who  interdicted the Petitioner on grounds of alleged gross  misconduct and whether the Petitioner challenged the  interdiction or not the Respondents had a legal duty and  obligation to follow the entire process and bring the matter  to a logical conclusion within reasonable time.

25. Interdiction or suspension with or without pay is not  equivalent to a dismissal or termination and hence the  Respondent always had a legal duty to carry out the entire  process and either dismiss or terminate the Petitioner or lift  the interdiction.

26. It is illogical and unreasonable for the Respondents to  argue that since the Petitioner has not challenged the  interdiction that they can now hold the interdiction in  abeyance indefinitely.

27. Article 47 of the Constitution gives every person,  including the Petitioner, a right to an administrative action  that is expeditious, efficient, lawful, reasonable and  procedurally fair.  Placing an employee (the Petitioner) on  interdiction for a period of over five years cannot be said  to be expeditious, efficient, lawful, reasonable, and  procedurally fair. The Respondents have conducted  themselves in the contrary of these values and principles.   The Respondents have conducted themselves in an  illogical and unreasonable manner in failing to take  appropriate administrative action against the Petitioner  within reasonable time and  that conduct on their part is  unfair, unlawful, and unconstitutional.

28. Article 41 of the Constitution gives every person,  including the Petitioner, the right to fair labour practices.   Such fair labour practices include those established under  written laws including the Employment Act. Holding an  employee on interdiction for over five years is not a fair  labour practice as envisaged under Article 41 of the  Constitution.  It is unfair, illogical, and unreasonable and  hence the Petitioner has a right to bring this matter to this  court for adjudication.

29. There is no argument that the dispute between the parties  relates to an employment relationship between the   Petitioner and the Respondents.  In fact, the Respondents  have admitted that the Petitioner is their employee on  interdiction in their pleadings, as stated in another part of  this judgment.

30. Article 162 (2) (a) of the Constitution creates this court  (ELRC) to deal with  employment and labour relations  disputes. The jurisdiction of this court is further  expounded under the Employment and Labour  Relations Courts Act and the Employment Act. There is  no doubt that the dispute between the Petitioner and the  Respondents relates to employment relationship between  the Petitioner and the  Respondents.

31. This court has said enough to illustrate and demonstrate  that the dispute between the Petitioner and the  Respondents is properly before this court and that this  court has the requisite Constitutional and legal  authority and jurisdiction to hear and determine the same.

32. In the circumstances, the first issue is returned in the  affirmative.

VI.  REMEDIES

33. This court has already found that it is illogical,  unreasonable, unconstitutional, and unlawful for the  Respondents to have placed the Petitioner on interdiction  for a period of over five years since 7^th November, 2016.

34. To the best of the understanding of this court the Petitioner  is not challenging the interdiction  per se.  The Petitioner  is challenging the delay by the Respondents in finalizing  the disciplinary process.  The Petitioner is aggrieved by  the  fact that while the letter of interdiction dated 7^th  November, 2016 promised that investigations would be  carried out and action taken, he has neither been invited  for a hearing nor informed of the outcome of the  investigations. The entire process has been held in  abeyance for over five years.  That is what the Petitioner is  complaining about and hence the doctrine of exhaustion as  submitted by counsel for the Respondents does not apply  here and the arguments on the same are rather misplaced.

35. In view of the foregoing the preliminary objection by the  Respondent and their reply to the petition must fail.

36. The delay by the Respondents in concluding the matter is  not only unconstitutional and unlawful, as demonstrated  above, but also against the same manual which the  Respondent are relying on that provides that disciplinary  action should be commenced within 14 days after  suspension/interdiction and be concluded within 30 days  or reasonable time.  Five years is certainly not a reasonable  period in dealing with such an issue and the delay is found  to be grossly inordinate, unconstitutional, unlawful,  illogical, and unreasonable.

37. In his petition, the Petitioner seeks for three prayers and  this court shall now deal with each one of them as  hereunder.

38. In the first prayer the Petitioner seeks for a declaration that  the Respondents have jointly discriminated against him  and that his rights have been violated.

39. This court has already found the violation of Articles 41  and 47 by the Respondents in the manner in which they  have handled the employment dispute with the Petitioner.   The conduct of the Respondents violates the rights of the  Petitioner to fair labour practices under Article 41.  The  Respondents are also in violation of Article 47 by denying  the petitioner a fair administrative action that should be  expeditious, efficient, fair, reasonable, lawful, and  procedurally fair.

40. This court has no difficulties at all in declaring the conduct  of the Respondents unconstitutional based on the  provisions above and the respondents are found to be in  violation of the rights of the Petitioner under Articles 41  and 47 of the Constitution of Kenya.

41. Prayer two is to the effect that the Respondents be ordered  to pay to the Petitioner salary arrears and to reinstate him  to his employment.

42. First, the Petitioner has not been dismissed or terminated  whatsoever.  The Petitioner has been on interdiction since  7^th November, 2016.

43. The Petitioner is still in employment of the 2^nd Respondent  and hence the remedy of reinstatement under Section  49(3)(a) of the Employment Act does not apply to him in  the  circumstances.

44. Having found that the Respondents have violated the  constitutional rights of the Petitioner under Articles 41  and 47 of the Constitution, and that it is not in dispute  that the Petitioner is still an employee of the 2^nd  Respondent, this court has no difficulties in allowing the  second prayer to the extent that the Respondents be and  are hereby compelled to pay to the  Petitioner salary  arrears in full for the period from 7^th November, 2016 to  date, subject only to lawful statutory deductions.  This  must be done before 30^th May, 2022 and the Respondents  shall continue to pay such monthly salary and allowances  as and when they fall due and to allocate to the Petitioner  duties as per his job description and letter of appointment.

45. Costs follow event and the Petitioner is awarded costs of  this petition.

VII. DISPOSAL

46. In disposal of this petition this court makes the following  orders:-

(a) A declaration be and is hereby made that the  Respondents have jointly and severally violated the  rights of the petitioner under Articles 41 and 47 of  the Constitution.

(b) The Respondents are hereby ordered to process and  pay all salary arrears and allowances payable to the  Petitioner subject only to lawful statutory deductions  for the period from November, 2016 to date and  that the same be paid by 30^th May, 2022 failure to  which execution shall issue.

(c) That the Respondents shall continue to pay the  monthly salary and allowances payable to the  Petitioner as and when the same fall due and to  allocate duties to the Petitioner as per his job  description and his letter of appointment.

(d) The Petitioner is awarded costs of this petition.

DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAKURU THIS 26^TH DAY OF APRIL, 2022.

…………………..

DAVID NDERITU

JUDGE