Ajwang v Office of the County Secretary, Nairobi City County & another (Petition E029 of 2025) [2025] KEELRC 1551 (KLR)
The bottom line
#The Employment Court dismissed a county officer's challenge to his suspension, ruling he should have first complained to the County Public Service Board and appealed to the Public Service Commission.
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 suspension of the petitioner by the 1st respondent was without legal authority, the disciplinary power to suspend being vested in the County Public Service Board under Sections 59 and 86 of the County Governments Act
- 2.Whether Section 62 of the Anti-Corruption and Economic Crimes Act, 2003 applied to justify the suspension absent criminal charges
- 3.Whether the reasons for the suspension were valid and fair in light of the EACC investigations and the consent/settlement dated 15.07.2024/17.07.2024
- 4.Whether the petitioner's constitutional rights under Articles 27, 28, 41(1), 47(1) and 24 were violated by the suspension
Key legal issues
#Authority of the County Secretary to suspend a county public officer
The County Public Service Board is empowered to delegate disciplinary authority to the County Secretary, and on a balance of probabilities the 1st respondent exercised such delegated power
Section 86 of the County Governments Act permits the Board to delegate in writing to the county secretary among others. The petitioner alleged no written delegation existed but led no evidence from the Board proving that no delegation was made, nor did he show he made inquiry and was denied. Applying the rule that he who alleges must prove, the Court found on a balance of probabilities that the delegated power was exercised. The petitioner also failed to invoke Section 75 of the Act on irregular processes.
Applicability of Section 62 of the Anti-Corruption and Economic Crimes Act to the suspension
Section 62 did not apply because the petitioner was never charged with a corruption or economic crime
The petitioner was suspended following EACC investigations into bribery and unexplained wealth, but was not charged with any criminal offence. The consent/settlement in ACEC Suit No. E012 of 2023 (OS) was a civil forfeiture resolution, not a criminal charge. Section 62 suspension at half pay is triggered by a charge, which was absent here.
Whether the suspension violated the petitioner's constitutional rights
No violation of Articles 24, 27, 28, 41 or 47 was established
The reasons for the suspension arising from EACC investigations culminating in an undisputed consent order for forfeiture of unexplained assets were valid and fair. The petitioner had not shown his culpability was conclusively determined, had not responded to the show-cause letter, and had not exhausted the statutory remedies of complaint to the County Public Service Board and appeal to the Public Service Commission under the County Governments Act.
Legal principles established
#- A party alleging absence of a written delegation under Section 86 of the County Governments Act bears the burden of proving that no delegation was made
- Suspension of a public officer on half pay cannot be justified under Section 62 of the Anti-Corruption and Economic Crimes Act absent criminal charges
- Statutory remedies before the County Public Service Board and appeal to the Public Service Commission must be exhausted where available
Court orders
#- 1.The petition is dismissed with no orders on costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and constitutional (Bill of Rights) claims; reliefs included certiorari under Order and constitutional petitions under Articles 41, 47, 27, 28 of the Constitution
Relief refused
#Declaration that the suspension was unfair, unconstitutional, illegal, null and void
The Court found the reasons for the suspension valid and fair and no constitutional violation established
Order directing respondents to allow the petitioner to resume work with full backdated salary and benefits from November 2024
Dismissal of the petition; the statutory pathways for resolving the suspension were not exhausted
Permanent injunction restraining further disciplinary proceedings
Not granted upon dismissal of the petition
Certiorari to quash the suspension letter dated 16th November 2023
Not granted upon dismissal of the petition
Damages for unlawful suspension and breach of constitutional rights
No violation of rights established
Costs
No orders on costs; in conclusion, the petition is dismissed with no orders on costs, in view that parties continue in the employment relationship
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.
In conclusion, the petition is dismissed with no orders on costs.
The Court returns that upon a balance of probabilities, the 1st respondent exercised the board’s delegated power to suspend.
The petitioner ofiers no evidence to show the board did not delegate to the 1st respondent the power to suspend as was exercised against the petitioner.
The statutory pathways should be exhausted in view of the long pending suspension.
the petitioner has been earning for a long time half salary, full housing allowance and medical insurance cover but without rendering public service and principles in Article 232 of the Constitution on economical and prudent use of public resources apply.
Issues in the judgment
#The judgment inconsistently refers to the EACC suit as 'ACEC Suit No. E012 of 2023 (OS)' and 'ACES Suit No. E012 of 2023 (OS)'
Consent judgment date inconsistency: judgment refers to a settlement agreement dated 15.07.2024 and consent dated 17.07.2024, while elsewhere stating a 'Consent Judgment dated 17.07.2024'
The suspension letter dated 16.11.2023 is described as being 'backdated from November 2024' in the reliefs and the replying affidavit paragraph numbering refers to a suspension letter dated 16th November 2023
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ajwang v Office of the County Secretary, Nairobi City County & another (Petition E029 of 2025) [2025] KEELRC 1551 (KLR)", Case Analysis (2025). Employment and Labour Relations Petition (ELRC, Nairobi) - amended petition dated 04.03.2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1551/eng@2025-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.