Nzatu v Board of Trustees National Social Security Fund & another (Constitutional Petition 8 of 2017) [2024] KEELRC 90 (KLR)
The bottom line
#Kenya's Employment Court ruled that stepping aside based on media reports—without your employer's instruction—counts as absconding, not suspension.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 1st Respondent violated the Petitioner's constitutional and statutory rights as identified in the Petition
- 2.Whether the Petitioner is entitled to the remedies pleaded
Key legal issues
#Whether the Petitioner's stepping aside constituted suspension by the employer
It did not; the Petitioner left employment on his own volition on the strength of media reports of a Presidential directive
The employer issued no instructions to step aside; the President, State House, EACC and ODPP were not the Petitioner's employer. He was bound only by instructions from his employer, and did not establish that he stepped aside under the Human Resource Manual, the Employment Act or the Anti-Corruption and Economic Crimes Act.
Whether the employer violated constitutional and statutory rights in the disciplinary process and summary dismissal
No violation; the Petitioner declined to attend the disciplinary hearing, and failed to prove unfair termination under Section 47(5) of the Employment Act
The letter to show cause raised matters largely outside the scope of the EACC investigations, so the Petitioner's reliance on his clearance was misguided. He was invited to a hearing with the s.41 accompaniment right, declined through advocates, and was dismissed for non-attendance, itself insubordination under s.44(4)(e).
Whether Regulation 29 of the Leadership and Integrity Regulations applied
It did not; it applies to officers who were suspended, and the Petitioner was never suspended
The Regulation obliges a public entity to reinstate an officer suspended and later cleared by the EACC within 14 days. Since no employer suspended the Petitioner, the Regulation has no application and the argument under the Leadership and Integrity Act is misplaced.
Legal principles established
#- A Presidential directive or media report does not constitute lawful suspension by an employer; self-imposed absence amounts to gross misconduct under Section 44(4)(a) of the Employment Act
- Clearance by EACC and the ODPP does not bind an employer's internal disciplinary process; administrative action is an employment decision for the employer
Court orders
#- 1.The Petition is declined
- 2.Costs to the Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Transferred from the High Court for want of jurisdiction; Employment and Labour Relations Court Act
Relief refused
#Declaration of violation of Articles 10, 27, 28, 47 and 232
No violation established
General damages for violation of constitutional and statutory rights
No violation found
12 months' gross salary
Dismissal was fair and valid
Mortgage penalties and interest
No evidence linking the 1st Respondent to the mortgage contract
Reinstatement or payment of employment benefits for remainder of service
Petitioner absconded; reinstatement barred by the 3-year limit under Section 12 of the E&LRC Act
Removal and disqualification of 1st Respondent members from public office
No legal foundation established
Relief against the 2nd Respondent
No cause of action disclosed against the EACC
Costs
Costs to the Respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is ordered: a. The Petition is declined. b. Costs to the Respondents.
Employers do not issue instructions to their Employers through press reports.
Whether administrative action was warranted was entirely an employment decision, to be made by the Employer, within the confines of the Human Resource Manual.
For 8 months, he was engaged in an act of gross misconduct under Section 44[4][a] of the Employment Act, over which the 1st Respondent would have been entitled to summarily dismiss the Petitioner.
Issues in the judgment
#Internal inconsistency on the date the Petitioner learnt of his mention in the report - stated as 2nd April 2016 in one place, 2015 elsewhere
Reinstatement reasoning refers to absconding on 2nd April 2016, inconsistent with the earlier finding of 2nd April 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nzatu v Board of Trustees National Social Security Fund & another (Constitutional Petition 8 of 2017) [2024] KEELRC 90 (KLR)", Case Analysis (2024). Petition (E&LRC) filed 14th February 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/90/eng@2024-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.