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ELRCPartially AllowedPetition (filed 17th October 2017)

Kenya County Government Union Workers, John Barongo Ombongi, Evans Mogire, Erick Odhiambo Abwao, Newton Mung’ala, Karisa Iha, Julius Kihanya Ndichu, Bernard P. W. Murage, Violet Avoga Oyangi, John Mbugua Karuku, Nyagara Nyamweya, Benjamin Mwangi Wang’ombe & Peter M. Muriithi v County Secretary, County Government of Nairobi, Mike Mbuvi Sonko, Governor, Nairobi County, County Government of Nairobi & County Public Sevice Board of Nairobi (Petition 90 of 2019) (Employment and Labour) [2019] KEELRC 2386 (KLR)

Employment and Labour Relations Court
6 February 2019
HWHellen Wasilwa
3,846 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered Nairobi County to pay each of 12 lawyers Kshs 2 million for unproven corruption allegations made against them.

What this practically means

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Executive summary

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Twelve employees of the Nairobi City County legal department (the 2nd to 13th Petitioners) were sent on compulsory leave by letter dated 26th September 2017, and the 2nd Respondent subsequently issued press statements indicating they were involved in illegal transactions targeting sale of public land. They petitioned the Employment and Labour Relations Court seeking a declaration of defamation, damages, an injunction, certiorari to quash the compulsory leave decision, findings of constitutional violations of Articles 10, 41, 47 and 236, and reinstatement. The Respondents raised a preliminary objection on prematurity which was dismissed on 6th June 2018, with the court finding the disciplinary process flawed and directing proper disciplinary proceedings. At the hearing, the court framed three issues: jurisdiction, whether the compulsory leave decision offended the rule of law and violated constitutional rights, and entitlement to remedies. It held it had jurisdiction since the defamation claim was ancillary to employment relations, following USIU v AG and Daniel N. Mugendi v Kenyatta University. It reaffirmed that the disciplinary process was flawed as it was not initiated by the County Public Service Board, violating Articles 41 and 47. On defamation, although the Respondents pleaded serious allegations of fraudulent land transactions and fair comment, they adduced no evidence to prove them, so the defamation claim succeeded. The court awarded each Petitioner Kshs 2 million in damages plus costs of the Petition. The relief of reinstatement and certiorari were not granted, the court noting the Respondents remained free to initiate proper disciplinary processes.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this Court has jurisdiction to determine this Petition
  2. 2.Whether the Respondents' decision to send the 2nd to 13th Petitioners on compulsory leave offends the rule of law and violates their rights under the Constitution
  3. 3.Whether the Petitioners are entitled to the remedies sought

Key legal issues

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01

Jurisdiction of the ELRC over a claim combining defamation and constitutional violations arising from employment

Holding

The court has jurisdiction because the defamation claim emanates from an employment relationship and is ancillary to Article 41 rights

Reasoning

Although the Court lacks jurisdiction over purely defamation cases (a preserve of the High Court), the defamation claim here arises from an employment relationship. Relying on USIU v AG and Daniel N. Mugendi v Kenyatta University, the court held it may deal with Article 41 rights and all fundamental rights ancillary and incidental to employment, including constitutional interpretation within the matter.

p. 5
02

Whether the compulsory leave decision violated the Petitioners' rights

Holding

The disciplinary process initiated by sending the Petitioners on compulsory leave was flawed, as it was not initiated by the County Public Service Board, violating Articles 41 and 47

Reasoning

The court had already held in its 6.6.2018 ruling that the disciplinary process was flawed because it was not initiated by the County Public Service Board, and had directed proper disciplinary proceedings. No evidence was presented that proper disciplinary processes were ever initiated, so the flawed position remained, and the Petitioners' Article 41 and Article 47 rights were violated.

p. 5
03

Defamation claim

Holding

The claim succeeds because the Respondents pleaded serious allegations of fraudulent land transactions but adduced no evidence to prove them

Reasoning

The Respondents pleaded that the Petitioners were involved in fraudulent sale of private land and even pleaded fair comment, but submitted no evidence to substantiate these serious allegations. Unproved, the statements are defamatory. The court therefore found for the Petitioners and awarded each Kshs 2 million in damages.

p. 6

Legal principles established

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  • A petitioner in a defamation suit must expressly disclose the impugned words, statements or phrases for the claim to succeed
  • The party making allegations must prove them; unproved allegations of illegal transactions are defamatory
  • The Employment and Labour Relations Court has jurisdiction over constitutional rights ancillary and incidental to employment relations

Court orders

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  1. 1.Declaration that the allegations made against the Petitioners are serious and defamatory in nature if not proved; the claim for defamation succeeds
  2. 2.Damages of Kshs 2,000,000 awarded to each of the Petitioners
  3. 3.Costs of the Petition awarded to the Petitioners

The bench

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One judgment of the whole court — no separate or dissenting opinions.

HW
majority

Wrote the judgment

Jurisdiction invoked
Article 41 and Section 12 of the Industrial Court Act, 2011 - Employment and Labour Relations Court jurisdiction over constitutional rights ancillary to employment

Relief refused

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Reinstatement of the 2nd to 13th Petitioners to their positions in the legal department

The court did not order reinstatement, noting the disciplinary process was flawed but the Respondents were free to initiate proper disciplinary processes

p. 5

Order of certiorari to quash the decision to send the Petitioners on compulsory leave and compensation for constitutional violations beyond the defamation damages

The court declined to belabour the issue, having already made a determination in its ruling of 6.6.2018, and addressed remedies through the defamation damages award

p. 6

Costs

Costs of the Petition awarded to the Petitioners

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Indeed this Court lacks jurisdiction to deal with purely defamation cases, as the Court with jurisdiction on this is the High Court.
p. 5Jurisdiction - defamation
I find I have jurisdiction to handle this matter and proceed to do so.
p. 5Jurisdiction - ELRC
The position therefore remains that the disciplinary processes that was initiated against the Petitioners by sending them on compulsory leave was flawed.
p. 5Flawed disciplinary process
It is however, the duty of the Respondent to prove their allegations, which the Petitioners denied.
p. 6Burden of proof on Respondents
In terms of remedies, I will therefore find for the Petitioners and award each one of them 2 million Kshs in damages plus costs of this Petition.
p. 6Final orders - damages and costs

Issues in the judgment

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minor

The judgment refers to a Preliminary Objection citing 'Section 77 of the County Government Act and Section 85 of the Public Service Commission Act' as appellate procedure, but the ruling is summarised without quoting the provision; the Petitioners' affidavit also cites 'Section 79 of the County Act (sic)' - the judgment itself flags the uncertainty with '(sic)'

minor

The judgment is silent on the fate of several prayers (certiorari, reinstatement, constitutional compensation beyond the defamation award), addressing remedies only through the defamation damages award

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya County Government Union Workers, John Barongo Ombongi, Evans Mogire, Erick Odhiambo Abwao, Newton Mung’ala, Karisa Iha, Julius Kihanya Ndichu, Bernard P. W. Murage, Violet Avoga Oyangi, John Mbugua Karuku, Nyagara Nyamweya, Benjamin Mwangi Wang’ombe & Peter M. Muriithi v County Secretary, County Government of Nairobi, Mike Mbuvi Sonko, Governor, Nairobi County, County Government of Nairobi & County Public Sevice Board of Nairobi (Petition 90 of 2019)  (Employment and Labour) [2019] KEELRC 2386 (KLR)", Case Analysis (2019). Petition (filed 17th October 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2386/eng@2019-02-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.