[2025] KEELRC 1658 (KLR)

Biwott & another v County Government of Uasin Gishu (Employment and Labour Relations Cause E024 of 2021) [2025] KEELRC 1658 (KLR) (30 May 2025) (Judgment)

Neutral citation: [2025] KEELRC 1658 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Eldoret

Employment and Labour Relations Cause E024 of 2021

MA Onyango, J

May 30, 2025

Between

Judith Jepkogei Biwott

1st Claimant

Benard Kipkorir Chelimo

2nd Claimant

and

County Government of Uasin Gishu

Respondent

Judgment

1. The Claimants herein are employees of the Respondent.

2. Vide an Amended Memorandum of Claim dated 13th May 2024 and filed in Court on 20th May 2024, they Claimants sought the following reliefs against the Respondent: -a.A declaration that the rights and freedoms from discrimination, to fair labour practices, fair administrative action and safeguard on subjecting a public officer to a disciplinary process with due process as enshrined in Articles 27, 41, 47 and 236(b) of the Constitution respectively have been breached by the actions of Respondent to place the Claimants on suspension and the investigations are a nullity.b.A declaration that the rights and freedoms from discrimination, to fair labour practices, fair administrative action and the safeguard on subjecting a public officer to a disciplinary process with due process as enshrined in articles 27, 41, 47 and 236 (b) of the Constitution ofth February,st Claimant is a nullity and the decision embodied in the letter dated the 11th April 2023 to the 2nd Claimant is a nullity.c.An order of certiorari to remove into this court and quash the decision placing them on suspension and the decision sanctioning investigations against them as communicated in respective letters dated the 24th May, 2021 together with any consequential acts of investigations so undertaken pursuant thereto and the decisions dated the 16th th April, 2023 in respect of the 1st and 2nd Claimant respectively lifting the suspensions but withholding salaries and benefits and administering warnings.d.An award of damages for the breach of Articles 27, 41 and 47 of the Constitution of Kenya, 2010. e.An order that they be restored resumption(sic) of full pay and payment of ½ of the withheld salary from the month of May, 2021 until the time of resumption of normal work duties. The 1st Claimant be paid the withheld salary from 24/5/2021 to 16/2/2024 being 33 months @ sh. 39,870 thus Kshs. 1,315,710 and for the 2nd Claimant from 24/5/2021 to 11/4/2023 being 23 months @ sh. 10,400 thus sh. 239,200. f.Payment of withheld commuter allowances for the 1st Claimant for 33 months @ sh. 8,000 thus Kshs. 264. 000 and for the 2nd Claimant for 23 months @ sh. 3,000 thus Kshs. 69,000. g.Costs and interests.

3. It is averred that the 1st Claimant is employed as a Roads Engineer while the 2nd Claimant is employed as a Plant Operator-Excavator.

4. The Claimants state that they have served the Respondent diligently and with dedication. They aver that on the 24th May 2021, the Respondent through its Chief Officer in charge of Roads, Transport, Energy & Public Works caused the Claimants to be placed on suspension.

5. It is contended that the suspension letter issued to the 1st Claimant indicated that her general conduct and work performance as a Roads Engineer had been found wanting and acts of negligence had been noted against her. With regard to 2nd Claimant, it was averred that the suspension letter issued to him indicated that his general conduct and work performance as a Plant Operator had been found wanting and acts of gross misconduct had been noted against him.

6. The Claimants stated that while on suspension, they were placed on half salary, full house allowance, medical cover and were not to leave their duty station without the express permission from their immediate supervisor. Further, that they were to tender representations within 21 days from the date of the letter failure to which an unspecified contemplated action would be taken without further reference to them. They averred that they made a response to the said letter on the 18th June, 2021.

7. The Claimants faulted the Respondent’s action of suspending them and contended that it is unfair, wrongful and unlawful for the reasons that: -a.No justifiable reason to form a prima facie case exists to place them on suspension.b.The Respondent failed to accord the Claimants an opportunity to be heard prior to placing them on suspension in breach of section D. 29 (1) (i) of the County Public Service Human Resource Manual.c.The Respondent in taking the disciplinary action was biased and discriminated against the Claimants since other similar suited employees whose vehicles had indications of siphoning fuel from the Fleet Management Information System were never suspended or breach of section D. 29 (1) (ii) and (2) of the County Public Service Human Resource Manual.d.The suspension of the Claimants was unlawful and wrongful as section D. 32 (1) of the County Public Service Human Resource Manual only provided for suspension where a public officer had been convicted of a serious criminal offence, other than for minor offences and which was not the case for the Claimants.e.The suspension of the Claimants is a clear violation of the terms of service as proceedings for the dismissal of the Claimants from employment have not been taken and as a result of which the Authorized Officer has considered that the claimants ought to be dismissed as provided for in section D.32 (2) of the County Public Service Human Resource Manual.f.The infliction of a suspension against the Claimants without according them a hearing amounts to an unfair labour practice in breach of article 41 of the Constitution of Kenya, 2010 and to the punishment of a public officer in a manner contrary to the Constitution or an Act of Parliament which is proscribed by section 76 (2) of the County Governments Act, 2012. g.The suspension militates against the safe-guards provided for in Article 236 (b) of the Constitution of Kenya, 2010 which frowns upon subjecting of a public officer to a disciplinary process without due process of the law.h.The suspension negates the purpose of its existence as the Claimants are still compelled to remain at work on ½ pay on full time basis which also translates to unfair labor practice in breach of article 41 of the Constitution of Kenya, 2010i.The excavator was faulty as its hour meter and fuel gauge were not functional thus no basin for the reports contained in the Fleet Management Information System existed to warrant the Claimants to be placed on suspensionj.The Claimants had not been put on caution or notice that severe employment disciplinary sanctions including dismissal from service were contemplated by the respondent in order to exercise caution while responding to the allegations in the suspension letters.k.The suspension violated the constitutional safeguard on Fair Administrative Action in Article 47 of the Constitution of Kenya, 2010 and section 4 of the Fair Administrative Action Act, 2015 which are recognized as being applicable to the employment relationship by dint of the preamble to the County Public Service Human Resource Manual.l.The suspension while requiring the Claimants to be coming to work and withholding commuter allowance amounted to an unfair labour practice under Article 41 of the Constitution of Kenya,2010.

8. It is the Claimants’ case that they were taken through a disciplinary hearing and the decision of the County Public Service Board served on them vide the letters dated 16th February 2024 and 11th April 2024 for the 1st and 2nd Claimant respectively indicated that the Claimants were not absolved fully absolved from the charges against them and it was resolved that: -a.The suspension be lifted from the date of the letterb.The salary withheld during the suspension period was to be forfeited based on the Public Service Commission Manual 2022 section 4. 2.2 (3) (d) and section 71 (5) of the Public Service Commission Act, 2017. c.A warning was issued that a repeat of the same or similar misconduct in future will lead to commencement of proceedings for dismissal from service.

9. The Claimants assert that the decisions of the Respondent on the disciplinary process are unlawful, unfair and wrongful for the reasons that:a.The decisions were in breach of section 76(2) of the County Governments Act, 2012 as they did not embody any indication of the misconduct for which they were found culpable or exonerated in compliance with the dictates of section 4 of the Fair Administrative Action Act, 2015 and Article 47 of the Constitution of Kenya, 2010. b.In the absence of the communication of reasons for the culpability of the Claimants for misconduct, the Respondent breached section 76 (2) of the County Governments Act, 2012 as the decision to impose a warning upon the Claimants was not based on any rationality and proportionality based on section 7(2) of the Fair Administrative Action Act,2015. c.There was unreasonable delay in the communication of the disciplinary process and decision making which amounted to a breach of section 76 (2) of the County Governments Act, 2012 as the Claimants were entitled by dint of Article 47 of the Constitution of Kenya, 2010 to expeditious and Fair Administrative Action.d.By a letter dated 15th September, 2021 the Respondent was informed of a request to appear with a legal representative during the disciplinary hearing but failed to address the same hence a breach of section 76(1) of the County Governments Act, 2012 as the provision for the same was in place under section 4 (3) (e) of the Fair Administrative Action Act, 2015 and section 2. 1 (b) (v) of the Public Service Commission Discipline Manual for the Public Service.e.The decisions were arrived at in breach of section 76 (1) of the County Governments Act, 2012 as the Claimants having been suspended for investigations to take place they were never availed with copies of the reports of the same prior to and during the disciplinary hearings in clear breach of section 2. 1 (b) (vii) and 2. l (c) of the Public Service Commission Discipline Manual for the Public Service.f.An opportunity to cross-examine witnesses was not accorded as provided for in section 2. 1 (b) (iv) of the Public Service Commission Discipline Manual for the Public Service.g.The warnings as an employment sanction were not expressly provided for hence the Respondent acted in breach of section 76 (2) of the County Governments Act, 2012. h.The warning were administered without basis as no proven misconduct was disclosed to warrant the same as required by section 76 (2) of the County Governments Act, 2012.

10. The Respondent filed a Response to the Amended Statement of Claim dated 28th October 2024 disputing the Claimants case in in entirety. The Respondent stated that prior to the suspension of 24th May 2021, the 1st Claimant had undergone several disciplinary proceedings including for charges of unethical conduct during the period between 12th February 2018 and 15th February 2018 and charges for failure to provide requisite supervision over plant operators who absconded duty. With regard to the 2nd Claimant, the Respondent averred that he was suspended vide a letter dated 24th May 2021 on grounds of gross misconduct.

11. The Respondent denied the averment made by the Claimants that the suspension was illegal and maintained that the suspensions were lawful. The Respondent contended that the letters of suspension dated 24th May 2021 served on the Claimants indicated the reasons for their suspension and also indicated that the purpose of the suspension was to allow for investigations to be conducted.

12. The Respondent asserted that the allegation by the Claimants that a public officer can only be suspended if they are facing criminal charges is misplaced and is a misapprehension of the law on suspension.

13. The Respondent asserted that it followed due process in the suspension of the Claimants.

14. The suit was disposed of by way of written submissions pursuant to the directions of the court issued on 12th June 2024. Both parties filed their written submissions.

The Claimants’ submissions 15. In their submissions dated 27th November 2024, the Claimants while placing reliance in the case of Fredrick Saundu Amolo v The Principal Namanga Mixed Secondary School & Others, (2014) eKLR, submitted that their suspension from employment was unfair, wrongful and unlawful as no justifiable reason to form a prima-facie case existed to place them on suspension. According to the Claimants, the excavator was faulty as it's hour meter and fuel gauge were not functional thus there was no basis for the reports contained in the Fleet Management Information System existed to warrant the Claimants to be placed on suspension. The Claimants submitted that the Respondent did not tender evidence to establish that the hour meter and fuel gauge were in sound working conditions and that the onus was upon the Respondent to tender records of the maintenance of the excavator which was a fact within its knowledge by dint of section 112 of the Evidence Act.

16. The Claimants further submitted that the Respondent failed to accord them an opportunity to be heard prior to placing them on suspension in breach of section D. 29 (1) (i) of the County Public Service Human Resource Manual. In addition, it was submitted that the infliction of a suspension against the claimants without according them a hearing amounted to an unfair labour practice in breach of Article 41 of the Constitution of Kenya, 20 10 and to the punishment of a public officer in a manner contrary to the Constitution or an Act of Parliament which is prescribed by section 76 (1) and (2) of the County Governments Act, 2012.

17. The Claimants also submitted that in clear breach of section D. 29 (1) (ii) and (2) of the County Public Service Human Resource Manual, the Respondent was biased and discriminated against the Claimants since other similar employees whose vehicles had indications of siphoning fuel from the Fleet Management Information System were never suspended or investigations commenced against them.

18. The Claimants submitted that their suspension was unlawful and wrongful as section D. 32 (1) of the County Public Service Human Resource Manual only provided for suspension where a public officer had been convicted of a serious criminal offence, other than for minor offences and which was not the case for the Claimants.

19. It is the Claimants submission that the suspension negated the purpose of its existence as the Claimants were still compelled to remain at work on ½ pay on full time basis, which alsotranslates to an unfair labour practice in breach of Article 41 of the Constitution of Kenya, 2010.

20. The Claimants faulted the disciplinary hearing they were taken through alleging that the decisions of the Respondent on the disciplinary process were unlawful, unfair and wrongful. The Claimant submitted that the resultant decisions were in breach of section 76 (2) of the County Governments Act as they did not embody an indication of the misconduct. It is the Claimants submission that in the absence of the communication of reasons for the culpability of the Claimants for misconduct, the Respondent breached section 76 (2) of the County Governments Act as the decision to impose a warning upon the Claimants was not based on any rationality and proportionality based on section 7 (2) of the Fair Administrative Action Act, 2015.

21. The Claimants also contended that by a letter dated the 15th September, 2021 the Respondent was informed of a request to appear with a legal representative during the disciplinary hearing but failed to address the same hence a breach of section 76 (1) of the County Governments Act, 2012 as the provision for the same was in place under section 4 (3) (e) of the Fair Administrative Action Act, 2015. On this basis, the Claimants urged the court to find that there was a violation of a fundamental entitlement of the Claimants to legal representation which despite the Respondent being put on notice by the Claimants, proceeded in blatant violation of the same by denying them that entitlement. In support of this position, the case of Ratemo v Kenya Film Commission & Another (Cause 2192 of 2012) [2014| KEIC 3 (KLR) (3 February 2014) was cited.

22. The Claimants therefore asserted that the decisions were arrived at in breach of section 76 (1) of the County Governments Act, 2012 as the Claimants having been suspended for investigations to take place were never availed with copies of the reports of the same prior to and during the disciplinary hearings in clear breach of section 2. 1 (b) (vii) and 2. 1 (c) of the Public Service Commission Discipline Manual for the Public Service.

23. In the end, the Claimants sought to be granted the reliefs in the Amended statement of claim. They also sought for an award of damages for breach of the rights to fair labour practices and fair administrative action in the sum of sh. 3,000,000 each and interests on the monetary awards. They also prayed for costs of the claim.

The Respondent’s submissions 24. The Respondent in its submissions dated 6th December 2024 framed the issues for determination to be:i.Whether the suspension of the Claimants was lawfulii.Whether the Claimants are entitled to the reliefs sought.

25. On the first issue, the Respondent submitted that the suspension of the Claimant was proper and lawful. According to the Respondent, the process of discipline is set out in the County Public Service Human Resource Manual Clause D.28 which grants disciplinary powers and removal of County Public Officers under the ambit of the County Public Service Board or Authorized Officers as specified in the County Government Act.

26. The Respondent contended that suspension from employment is an administrative prerogative and that an employer is allowed to suspend an employee from duty for stated reasons.

27. According to the Respondent, the purpose of the suspension as outlined in the letters of suspension issued to the Claimants was to facilitate investigations of the reported conduct. The Respondent further submitted that there existed a prima facie case to warrant the said suspension, after the Claimants were reported to have failed in the performance of their duties.

28. It was the Respondent’s submission that the Claimants were not entitled to be heard prior to the suspension as no substantive disciplinary action had been taken yet. According to the Respondent, the suspension the Claimants were subjected to was administrative pending further inquiry into the matter and the right to be heard at his preliminary stage is not absolute unless entrenched in statute or the contract of employment between the parties. The Respondent asserted that suspension is only a precursor to an administrative process that will result into an eventual hearing of the dispute at a disciplinary session before the ultimate decision is rendered. In support of this position, the Respondent cited the case of Lamu County Government & County Secretary, Lamu County v Mubammed Ali Shee [2021| KEELRC 429 (KLR)

29. It is therefore the Respondent’s submission that it was not obligated to accord the Claimants a hearing at the preliminary stage of suspension noting the suspension was administrative and the same was not provided for in any statute or contract. The Respondent submitted that the assertion that Claimants should have been given prior hearing before suspension is unreasonable, as it would defeat the whole purpose of suspension which is to allow for further investigations. To buttress this point, the Respondent cited the case of Martin Nyaga Wambora &e 4 Others v Speaker of the Senate & 6 Others [2014] eKLR

30. The Respondent thus submitted that the decision to suspend the Claimants was properly anchored in law, justified, proper and lawful.

31. In response to the allegation made by the Claimants that the Respondent did not grant them an opportunity to legal representation and to cross-examine witnesses, the Respondent contended section 41 of the Employment Act has no requirement of legal representation but the requirement to have a fellow employee or a shop floor union representative accompanying the employee. The Respondent submitted that the Claimants were afforded a fair hearing, were accorded opportunities to make oral and written submissions and to be accompanied by a fellow employee or a shop-floor representative. The Respondent also submitted that there is no requirement for cross-examination of witnesses under Section 41. In addition, the Respondent asserted that disciplinary hearing is an administrative process and not a judicial process. In support of this positions, the Respondent cited the case of Biwott & anotherv County Government of Uasin Gishu (Cause E024 of 2021) [2022] KEELRC 13415 (KLR) (21 November 2022) and Judicial Service Commission v Mbalu Mutava & another [2015] eKLR,

32. It was the Respondent’s further submission that the reinstatement letters sufficiently and in detail informed the Claimants that they were not fully absolved of the said charges. According to the Respondent, the letters made reference to the suspension letters dated 24th May 2021, and the subsequent written and oral submissions. It is thus submitted that the Claimants assertion that the warning did not embody the misconduct is misleading as the warning issued to the Claimants was justified and anchored in law as a form of punishment. Reliance was placed in the case of Kutto vCounty Government of Uasin Gishu & another (Cause 46 of 2020) (2023] KEELRC 2580 (KLR)(5 October 2023) (Judgment)

33. Based on the arguments above, the Respondent submitted that the suspension and disciplinary process against the Claimants were conducted lawfully and fairly. It is the Respondent’s submission that the Claimants were not fully exonerated as they were punished by warnings. On this basis, the Respondent submitted that the Claimants are not entitled to the restoration of withheld salaries during the suspension period as the Public Service Commission Disciplinary Manual under Section 4. 2.2. 3d provides that where a public officer under suspension is not dismissed but any penalty prescribed in the manual is imposed upon termination of the proceedings, any withheld salary, allowances and other benefits shall not be restored.

34. In conclusion, the Respondent urged this court to make a finding that the Claimants did not discharge their onus with regards to Section 47(5) of the Employment Act as they did not sufficiently substantiate their allegations that the suspension and disciplinary hearing was unlawful and unprocedural. The Respondent also sought for the claim to be dismissed with costs on the basis that it lacks merit.

Determination 35. I have examined the pleadings and submissions of the parties herein. The gist of this claim is what the Claimants were unlawfully suspended by the Respondent. They have sought to be paid salaries that were withheld during suspension.

36. The Claimants faulted the Respondents in suspending from employment them on three fronts. Firstly, they aver that that they were suspended from employment without being given a hearing. They also contend that the disciplinary hearing was flawed as they were not granted an opportunity to be represented by counsel and to cross-examine witnesses. Thirdly, the Claimants faulted the decision made by the Respondent after the disciplinary hearing alleging that it did not embody any indication of the misconduct for which they were found culpable or exonerated in compliance with the provision of section 4 of the Fair Administrative Action Act and Article 47 of the Constitution.

37. In response, the Respondent submitted that it was not obligated to grant the Claimants a hearing before suspending them and that section 41 of the Employment Act does not make provisions for legal representation and cross-examination during the disciplinary hearing. The Respondent submitted that the Claimants were afforded a fair hearing, were accorded opportunities to make oral and written submissions and to be accompanied by a fellow employee or a shop-floor representative as envisaged by section 41 of the Employment Act. On the third issue, the Respondent submitted that in its decision after the disciplinary hearing it issued the Claimants with warnings as a form of punishment.

38. Having considered the evidence on the chronology of events herein, I am not convinced that the suspension of the Claimants was unlawful. Firstly, the argument by the Claimants that they ought to have been heard before being suspended is not anchored on the law. Under the Employment Act, there is no requirement for a hearing prior to suspension being effected by an employer. In the case of Luka Korir v Moi Teaching and Referral Hospital [2022] eKLR, the Court held as follows regarding the issue:-“(21)Section 41 of the Employment Act provides that before terminating the employment of an employee an employer is required to explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or shop floor union representative of his choice present during explanation.(22).This section does not seem to apply to the case of suspension. A suspension from employment is not a termination. It is in essence a temporary separation from day-to-day duties of an employee suspected of committing a disciplinary offence…To require an employer to hear an employee in such a preliminary stage before handing the suspension does not sound practical.”

39. It therefore follows that the Respondent did not have an obligation to subject the Claimants to a hearing as contemplated under section 41 of the Employment Act, prior to suspending him.

40. On the issue that the disciplinary hearing was unfair as the Claimants were not allowed to have legal representation and to cross examine witnesses, as rightly submitted by the Respondent, section 41 of the Employment Act does not make provisions for legal representation and cross examination of witnesses. It provides:-“Subject to section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1), make.’’

41. From the above, there is no provision for an employee attending a disciplinary hearing to be represented by counsel or to cross examine witnesses.

42. With regard to the issue whether the Claimants were found culpable of the offence they were suspended on, from the pleadings and the submissions of the parties herein, in the letters lifting the suspension the Claimants were given warnings that a repeat of the same or similar misconduct in future will lead to commencement of proceedings for dismissal from service.

43. This court, in the case cited by the Respondent Kutto vCounty Government of Uasin Gishu & another (Cause 46 of 2020) [2023] KEELRC 2580 (KLR) (5 October 2023) (Judgment), observed:-“40. From the above letter, it is evident the Claimant was given a final warning as a result of gross misconduct. This begs the question, is warning a form of punishment?41. A warning in my view is a disciplinary measure taken by the employer against an employee found culpable of misconduct. It is therefore a form of punishment.”

44. To this end, the Claimants having been issued with warnings cannot be heard saying that the Respondent’s decision after the disciplinary hearing did not find them culpable of the offence for which they were suspended.

45. In light of the foregoing, it is my finding that the suspension of the Claimants was not unlawful or unfair as alleged.

46. The next issue for consideration is whether the Claimants are entitled to the salaries that were withheld during the period they were on suspension.

47. As mentioned earlier in this judgment, the Claimants were given warnings, which served as a form of punishment. The Public Service Commission Disciplinary Manual under Section 4. 2.2. 3d provides: -“Where a public officer under suspension is not dismissed but any penalty prescribed in the manual is imposed upon termination of the proceedings, any withheld salary, allowances and other benefits shall not be restored.”

48. The Claimants are County public officers to whom the Public Service Commission Disciplinary Manual applies. The provisions of section 4. 2.2. 3d of the Public Service Commission Disciplinary Manual is explicit that they are not entitled to payment of the withheld salary. They are therefore not entitled to withheld salaries as they were not exonerated from the misconduct they had been accused of.

49. Consequently, having found that the suspension of the Claimants was lawful and that they are not entitled to payment of the withheld salary, it follows that the Claimants’ suit is without merit. The same is accordingly dismissed with no orders as to costs.

DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 30TH DAY OF MAY 2025MAUREEN ONYANGOJUDGE