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ELRCStruck OutNot stated in the judgment

Njako v Competition Authority of Kenya & another (Employment and Labour Relations Petition E136 of 2024) [2025] KEELRC 1284 (KLR)

Employment and Labour Relations Court of Kenya
7 May 2025
2,703 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Petitioner, an employee of the 1st Respondent (a state corporation identified by the reference 'CAK'), petitioned the court challenging a board resolution adopted on 31st January 2024 to surcharge her Kshs. 1,227,769.20 (or 1,277,769.20 as elsewhere stated) for failure to submit back-to-office reports for foreign trips to Geneva and Thailand. She sought a declaration that the decision contravened Articles 10, 19(2), 20(2), 21(1), 22, 23, 28, 35, 41, 47 and 50(1) of the Constitution, an order of judicial review quashing the decision communicated vide an Internal Memo dated 24th July 2024, repayment of any deductions, general damages and costs. She argued she had surrendered her Daily Subsistence Allowance which was approved, that the surcharge would leave her without salary for about 12 months, and that the Respondents violated fair administrative action under Article 47 and the Fair Administrative Action Act by failing to furnish her with the board resolution or charges. The Respondents countered that the audit was not an investigation, that affected officers were given time to file reports, and that the surcharge had not in fact been effected and the suit was premature for failure to exhaust internal mechanisms. The court (Hellen Wasilwa, J) held that the envisaged surcharge had not been effected, internal disciplinary mechanisms had not been exhausted, and no surcharge could occur without the Petitioner being allowed to defend herself. The petition was struck out with no order of costs, on 7th May 2025.

Questions the Court framed

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

  1. 1.Whether the Respondents acted in contravention of the Constitution in resolving to surcharge the Petitioner
  2. 2.What should be the fate of the said deliberations, determinations and/or decisions made by the Respondents
  3. 3.What are the appropriate orders for the court to make under the circumstances
  4. 4.Whether there exists a reasonable cause of action in the present suit
  5. 5.Whether the orders sought in the Petition are capable of being granted
  6. 6.Whether the Petitioner is entitled to damages
  7. 7.Who should bear the costs of the suit

Key legal issues

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01

Prematurity/exhaustion of internal remedies

Holding

The petition was premature because the surcharge had not been effected and internal disciplinary mechanisms had not been exhausted

Reasoning

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.

p. 6
02

Right to be heard before surcharge

Holding

Any surcharge would require the Petitioner first be allowed to defend herself

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The petition is struck out with no order of costs

The bench

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

majority

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

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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

p. 6

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

p. 6

Payment of all salary, remuneration and benefits deducted pursuant to the surcharge

No surcharge had been effected; the relief was anticipatory

p. 6

General damages for breach of fundamental rights

Not granted; petition struck out for prematurity

p. 6

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

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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.

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.
p. 6Final orders - striking out for prematurity
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.
p. 6Basis for striking out - surcharge not effected
In any case no surcharge can happen without the petitioner being allowed to defend herself.
p. 6Right to be heard before surcharge

Issues in the judgment

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minor

Inconsistent surcharge figure: the prayer states Ksh. 1,227,769.20 while the body states Kshs. 1,277,769.20

minor

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

minor

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

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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, "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.