[2017] KEELRC 1938 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU

Petition No. 7 Of 2017

IN THE MATTER OF ARTICLES 10, 27, 28, 41, 50, 176, 179 AND 236 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 27, 28, 41 AND 50 OF THE CONSTITUTION

AND

IN THE MATTER OF THE COUNTY GOVERNMENTS ACT, 2012

AND

IN THE MATTER OF COMPULSORY LEAVE IMPOSED ON THE PETITIONERS

Between

LILIAN KARANJA 1ST PETITIONER

NIXON CHERUIYOT 2ND PETITIONER

WACHIRA MWANGI 3RD PETITIONER

DOMINIC KIPLANGAT 4TH PETITIONER

LYDIA WAWERU 5TH PETITIONER

SARAH KANGARA 6TH PETITIONER

PETER IRUNGU 7TH PETITIONER

DAVIS MWAURA 8TH PETITIONER

VIVIAN YEGON 9TH PETITIONER

COLLINS KIPKOECH 10TH PETITIONER

NANCY MUNYAO 11TH PETITIONER

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 26th PETITIONER

JACKLINE NJERI KIBUI 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

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

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

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

JOYCE SANG 102nd PETITIONER

BEATRICE CHEPKEMOI 103rd PETITIONER

RACHEL WAITHERA KIGOSI 104th PETITIONER

KEN MUNGAI 105th PETITIONER

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

COUNTY SECRETARY,

COUNTY GOVERNMENT OF NAKURU 1st RESPONDENT

HON. LEE KINYANJUI,

NAKURU COUNTY 2nd RESPONDENT

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 3rd 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 1st and 2nd Respondents filed their submissions on 11 October 2017 and the 3rd 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 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.

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