Njako v Competition Authority of Kenya & another (Employment and Labour Relations Petition E136 of 2024) [2025] KEELRC 1284 (KLR)
The bottom line
#The Employment Court struck out an employee's challenge to a proposed surcharge because she went to court before the surcharge took effect and before exhausting internal remedies.
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 Respondents acted in contravention of the Constitution in resolving to surcharge the Petitioner
- 2.What should be the fate of the said deliberations, determinations and/or decisions made by the Respondents
- 3.What are the appropriate orders for the court to make under the circumstances
- 4.Whether there exists a reasonable cause of action in the present suit
- 5.Whether the orders sought in the Petition are capable of being granted
- 6.Whether the Petitioner is entitled to damages
- 7.Who should bear the costs of the suit
Key legal issues
#Prematurity/exhaustion of internal remedies
The petition was premature because the surcharge had not been effected and internal disciplinary mechanisms had not been exhausted
The court found the envisaged surcharge had not been effected and internal disciplinary processes were incomplete. Where adverse administrative action is anticipated rather than actual, a party should first pursue internal administrative dispute resolution mechanisms before invoking the court's jurisdiction. The court therefore struck out the petition rather than determine the constitutional claims.
Right to be heard before surcharge
Any surcharge would require the Petitioner first be allowed to defend herself
The court observed that no surcharge could lawfully happen without the petitioner being allowed to defend herself, implying the Petitioner retained procedural protections within the internal process and the feared harm was speculative.
Legal principles established
#- An employee may not move to court before exhausting internal administrative dispute resolution mechanisms where the adverse administrative action is yet to take effect
- No surcharge can be effected on an employee without affording the employee an opportunity to defend herself
Court orders
#- 1.The petition is struck out with no order of costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original constitutional petition jurisdiction; the judgment does not expressly invoke a jurisdictional provision, but the petition is brought under Articles 10, 19(2), 20(2), 21(1), 22, 23, 28, 35, 41, 47 and 50(1) of the Constitution
Relief refused
#Declaration that the Board's deliberations, determinations and decisions (including the surcharge) contravened the Constitution
The petition was premature as the surcharge had not been effected and internal mechanisms had not been exhausted
Quashing of the determinations/decisions communicated vide the Internal Memo dated 24th July 2024 and setting aside of the surcharge
Struck out as premature; no surcharge had been effected
Payment of all salary, remuneration and benefits deducted pursuant to the surcharge
No surcharge had been effected; the relief was anticipatory
General damages for breach of fundamental rights
Not granted; petition struck out for prematurity
Costs
No order of costs - each party to bear their own costs effectively; the court struck out the suit 'with no order of costs'
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 my finding that the petitioner approached this court prematurely and the petition should not be allowed to proceed. The same is struck out with no order of costs.
It is clear that the envisaged surcharge of the petitioner has not been effected. It is also clear that the internal disciplinary mechanism have not taken place to warrant the petition being alarmed.
In any case no surcharge can happen without the petitioner being allowed to defend herself.
Issues in the judgment
#Inconsistent surcharge figure: the prayer states Ksh. 1,227,769.20 while the body states Kshs. 1,277,769.20
Inconsistent date for Circular No. OP/CAB.304/018: the Replying Affidavit records it as dated 19th June 2023 while the Petitioner's submissions refer to it as issued on 29th June 2023
The Petitioner's case refers to the Manager Internal Audit as 'Mr Ochieng O. Ochiel' while the Replying Affidavit is sworn by 'Onesmus O. Ochiel' - name not internally consistent
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njako v Competition Authority of Kenya & another (Employment and Labour Relations Petition E136 of 2024) [2025] KEELRC 1284 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1284/eng@2025-05-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.