https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2361

Wekesa v Kenya Industrial Property Institute (Cause E685 of 2025) [2026] KEELRC 2361 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KEELRC 2361 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E685 of 2025 AK Nzei, J July 31, 2026 Between Vincent Maunda Wekesa Claimant and Kenya Industrial Property Institute Respondent Ruling Background 1.The Claimant sued the Respondent herein vide a Memorandum of Claim dated 16th July, 2025, seeking the following reliefs:-(a)A declaration that the interdiction of the Claimant on 4th July, 2025 by the Respondent is unlawful, null and void.(b)An order quashing the interdiction letter dated 4th July, 2025 and directing the Respondent to reinstate the Claimant to his position as Executive Driver, Grade KP8, with full duties, salary of Kshs.49,000/= per month, house allowance of Kshs.16,500/= per month, commuter allowance of Kshs.5,000/= per month and all associated benefits, effective immediately.(c)An interim order restraining the Respondent from proceeding with any disciplinary action, including dismissal, against the Claimant pending determination of the suit.(d)An order directing the Respondent to pay the Claimant all withheld salary and benefits, totalling Kshs.70,500/= per month, comprising Kshs.49,000/= basic salary, Kshs.16,500/= house allowance and Kshs.5,000/= commuter allowance, from 4th July, 2025 to the date of reinstatement, with interest at Court rates until payment in full.(e)Costs of the suit.(f)Such other or further relief as the Court may deem fit and just to grant. 2.The suit was filed contemporaneously with an evenly dated urgent application. The Notice of Motion dated 16th July, 2025. 3.The Claimant/Applicant sought the following Orders vide the said application:-(1)That service be dispensed with in the first instance, and the matter be certified urgent and be heard ex-parte.(2)That pending hearing and determination of the application, the Court be pleased to:-(a)Issue an interim order staying the Respondent’s decision to interdict the Claimant/Applicant from employment on 4th July, 2025 on the basis of alleged misconduct that was never proved by the Respondent.(b)Order and direct the Respondent to forthwith, immediately and unconditionally, reinstate the Claimant/Applicant to his position as Executive Driver, Grade KP8, with full duties, salary of Kshs.49,000/= per month, house allowance Kshs.16,500/= per month and commuter allowance of Kshs.5,000/= per month.(3)That pending hearing, determination and final disposal of the claim herein, the Court be pleased to:-(a)Issue an interim order staying the Respondent’s decision to interdict the Claimant/Applicant from employment on 4th July, 2025 on the basis of alleged gross misconduct that was never proved by the Respondent.(b)Order and direct the Respondent to forthwith, immediately and unconditionally, reinstate the Claimant/Applicant to his position as Executive Driver Grade KP8, with full duties, salary of Kshs.49,000/= per month, house allowance of Kshs.16,500/= per month, and commuter allowance of Kshs.5,000/= per month.(4)That pending the hearing, determination and final disposal of the application, a prohibitory order be issued prohibiting the Respondent, its agents, or persons acting under its instructions, from proceeding with any disciplinary action, including dismissal, against the Claimant/Applicant.(5)Any other order that this Court deems fit and just to grant in the circumstances.(6)That costs of the application be borne by the Respondent. 4.The application is based on the Claimant/Applicant’s supporting affidavit sworn on 16th July, 2025. It is deponed in the said supporting affidavit, inter-alia:-(a)that the Claimant/Applicant was employed by the Respondent as an Executive Driver, Grade KP8, effective 1st March, 2024 vide an offer of appointment dated 25th January, 2024; earning a gross monthly salary of Kshs.70,500/= comprising of Kshs.49,000/= basic salary, Kshs.16,500/= house allowance and Kshs.5,000/= commuter allowance.(b)that the Claimant/Applicant was a diligent and disciplined employee, and had no prior warnings or disciplinary issues during his tenure of employment.(c)that on 23rd June, 2025, the Claimant received a show cause letter from the Respondent alleging non-payment of Kshs.91,260/= to Baraka Shell Petrol Station, missing seven (7) tyres issued on 21st March, 2025, and offences including pecuniary embarrassment, misuse of resources, negligence, and misappropriation; to which the Claimant responded on 24th June, 2025, providing specific rebuttals and receipts.(d)that on 4th July, 2025, the Respondent interdicted the Claimant from employment without affording him a disciplinary hearing, specifying the duration of interdiction, or clarifying the Claimant’s pay status; and directing the Claimant to hand over all institute assets to the Assistant Manager, Administration.(e)that allegations against the Claimant were baseless; and that the Claimant has been wrongly targeted and harassed by the Managing Director and Supervisor, constituting discrimination and bad faith(f)that the Respondent’s actions, particularly failure to conduct a hearing, demonstrate a premeditated intent to dismiss the Claimant, as the interdiction letter suggests ongoing investigations leading to potential dismissal.(g)that the unclear pay status, whether unpaid or on half pay, has threatened the Claimant’s ability to support his family, and has caused him financial distress.(h)that the Respondent’s decision to interdict the Claimant without due process is in breach of the Claimant’s right to a fair hearing, fair labour practice, and fair administrative action (Articles 50, 41 and 47 of the Constitution of Kenya 2010). 5.The application was placed before me under a Certificate of Urgency, on 22nd July, 2025, and finding no urgency in it, I directed that the same be served. 6.There was no attendance on the part of the Respondent when the matter came up in Court on 24th July, 2025; and on application by Counsel for the Claimant/Applicant, I granted an interim order restraining the Respondent from proceeding with further disciplinary proceedings against the Claimant/Applicant, including dismissal. 7.The Respondent eventually appeared in Court (by Counsel) on 12th November, 2025, and both parties informed the Court that they were negotiating the matter; and sought time to conclude those negotiations. Nothing came out of the alleged negotiations, though. 8.Eventually, the Respondent opposed the application vide a replying affidavit of John Henry Onyango Ogwang, the Respondent’s Managing Director, sworn on 12th February, 2026. It is deponed in the said replying affidavit, inter-alia:-(a)that the Respondent received a demand letter from Shell Baraka Petrol Station on 14th May, 2025 addressed to the Claimant indicating that despite several follow-ups through phone calls and physical meetings, an outstanding sum of Kshs.91,260/= remained unpaid and was still owing. That the letter enclosed a statement signed by the Claimant on 24th March, 2025 acknowledging awareness of the said debt; which Shell Baraka Petrol Station stated it would use in Court as evidence of non-payment.(b)that the Respondent’s Assistant Manager issued a show cause letter to the Claimant on 23rd June, 2025, to which the Claimant responded on 24th June, 2025.(c)that the Respondent’s Managing Director issued a letter of interdiction to the Claimant dated 4th July, 2025, informing him that:-“his response had been considered, and that the Respondent had arrived at the decision to interdict the Claimant from employment with effect from the date of the letter to allow for further investigations. That the Claimant would be informed of the outcome of the investigations”.(d)that vide a letter dated 10th August, 2025 and addressed to the Respondent’s Managing Director (the deponent), the Claimant tendered his resignation from the Respondent, with effect from 10th August, 2025. That this was for purposes of contesting in the by-election that was held at Kabuchai/Chwele Ward on 27th November, 2025 (as a Member of County Assembly, Bungoma County).(e)that vide a Gazette Notice No. 15731 dated 29th October, 2025, the Independent Electoral and Boundaries Commission gazetted the Claimant as one of the nominees who intended to contest in the by-election.(f)that vide a letter dated 19th November, 2025, the Respondent duly informed the Public Service Commission (PSC) that the Claimant had tendered his resignation in order to participate in the by-election on 27th November, 2025.(g)that subsequently, the Claimant was no longer recognised as a Public Servant, either by the Respondent which is a state corporation or by the PSC, which was notified of his resignation as required. 9.It is to be noted that although the Claimant is alleged to have tendered his resignation on 10th August, 2025, the resignation letter has not been exhibited by the Respondent. 10.The Claimant/Applicant filed [a further] affidavit in response to the Respondent’s foregoing replying affidavit and stated, inter alia, that as a senior driver, his duties were confined to driving and vehicle handling as assigned, and that fuel procurement, credit arrangements, conciliation of accounts and settlement of invoices fell under the Respondent’s Finance, Procurement and Transport Departments. That the Respondent’s attempt to attribute personal liability to the Claimant was legally untenable. 11.The Claimant further deponed that the issues relating to elections as deponed to by the Respondent were an afterthought as they were not part of the allegations levelled against the Claimant in the show cause letter. 12.Both parties filed written submissions on the Claimant/Applicant’s application herein pursuant to the Court’s directions in that regard. 13.It is clear from the pleadings so far filed and materials (documents) placed before the Court that the Respondent is a state corporation, and that the Claimant is a Public Officer. Section 2 of the Public Service Act defines a Public Officer as:-“any person other than a state officer who holds a public office”. 14.Vide a show cause letter dated 23rd June, 2025, the Respondent charged the Claimant/Applicant with gross misconduct (negligence of duty, wilful misuse of the Respondent’s property and misappropriation and theft of the institute’s property), among other offences. The Claimant responded to the show cause letter vide his letter dated 24th June, 2025. 15.The Respondent interdicted the Claimant vide a letter of interdiction dated 4th July, 2025. The interdiction letter states as follows;“Refer to the Institutes show cause letter to you dated 23rd June, 2025.The Institute has considered carefully your response to the accusations levelled against you and arrived at the decision to interdict you from employment with effect from the date of this letter so as to allow for further investigations.You are hereby directed to hand over all the Institute’s assets and any official documents in your custody to the Assistant Manager, Administration with immediate effect.You will be informed accordingly of the outcome of the investigations”. 16.The foregoing interdiction letter is silent on both the period of the imposed interdiction and the Claimant’s pay status during the period of interdiction. It is the aforestated interdiction letter which triggered institution of the suit herein. 17.Further, the said letter is silent on the Claimant’s right to be heard upon conclusion of “further investigations”. The Court cannot ignore the fact that although investigations must ordinarily precede the formal charging of an employee by an employer, the Claimant herein was formally charged before completion of investigations against him; and was called upon to respond to the formal charges, again before completion of investigations, which he did. Instead of being given an opportunity to be heard pursuant to Section 41 of the Employment Act, the Claimant was issued with a letter of indefinite interdiction, with no mention of his pay status during the interdiction period. 18.Under Section 71(3) of the Public Service Commission Act (No. 10 of 2017), a Public Officer who is suspended from duty shall receive a half basic salary and full house allowance and medical allowance or medical insurance premium remitted, whichever is the case, but other benefits shall be withheld by the authorised officer. 19.Regulation 63(g) of the Public Service Commission Regulations 2020 states that where the interdiction or suspension has exceeded six months, the reasons for the delay in concluding the proceedings must be given to the Commission by the authorised officer, quarterly, on the status of the case. It is clear from the foregoing provision that the period of an imposed suspension or interdiction must be specified in the letter of suspension and/or interdiction. Failure by an authorised officer, in this case the Respondent’s Managing Director, to do so amounts to both an unfair labour practice and an unfair administrative action; and contravenes the aforementioned provisions of the Public Service Commission Act and Section 4(1) of the Fair Administrative Act (No. 4 of 2015). 20.Although the Court will not ordinarily interfere with, or even supervise an employer’s managerial and internal disciplinary processes, the Court will not hesitate to intervene in cases where glaring unlawful and unfair exercise of such functions by an employer has been demonstrated. 21.Interdiction of a Public Officer for an unspecified period, and without any pay, is both unlawful and unfair. This Court must intervene. I make a finding that the interdiction letter dated 4th July, 2025 was invalid for contravening the statute. 22.For record purposes, interdiction and suspension of employees by employers are both temporary steps used in employment, differing primarily by stage and pay status. Interdiction is used during investigations, with reduced pay, while suspension usually follows a formal charge and/or disciplinary proceedings, also with specific salary adjustments. 23.On the Respondent’s allegation that the Claimant resigned from employment on 10th August, 2025 in order to pursue political interests, the Respondent did not file a copy of any resignation letter in Court; and none is shown to have been annexed to the Respondent’s letter to the Public Service Commission on the subject, dated 19th November, 2025. The issues of whether or not the Claimant resigned from employment as alleged by the Respondent, and whether he participated in elections without first resigning from a Public Office as alleged, are issues that can only be determined upon full trial, as the Court determines the rights and obligations of the parties herein. 24.Pursuant to Section 12(3)(viii) of the Employment and Labour Relations Court Act, this Court has jurisdiction to grant “any other appropriate relief as the Court may deem fit to grant”. The Claimant has invoked this Jurisdiction vide prayer (6) in the application. The issue of the alleged resignation of the Claimant has not been proved, at least at this stage. The Claimant is not shown to have been released/cleared from the Public Service. The exhibited Gazette Notice would have been of relevance at this stage if it was shown to have been a publication of the alleged resignation. 25.In view of the foregoing, and having considered written submissions filed on behalf of both parties herein, the Notice of Motion dated 16th July, 2025 partly succeeds, and is allowed in the following terms:-(a)The interdiction letter dated 4th July, 2025 was both unfair and unlawful, and was therefore invalid.(b)Pending hearing and determination of the suit/claim herein, the Respondent, its agents or any person acting under its instructions, is hereby prohibited from proceeding with disciplinary action, including dismissal, against the Claimant.(c)The suit herein shall be fast-tracked, and shall be set down for hearing.(d)Costs of the application shall be in the suit. 26.Orders accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY 2026AGNES KITIKU NZEIJUDGEOrderThis Ruling has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of the applicable Court fees.AGNES KITIKU NZEIJUDGEAppearance:Mr. Opwora for the ClaimantMiss Kipkesei for the Respondent