Disputes in public sector employment often sit at a volatile intersection of labour law, administrative law, and constitutional protections. While public employers, particularly county governments, exercise broad authority over human resource management, that authority is not absolute. The Supreme Court of Kenya, in Dr Magare Gikenyi vs County Government of Nakuru & Others, has provided a definitive roadmap for balancing these powers with the rights of the employee. 

The dispute arose when the County Government of Nakuru suspended Dr. Gikenyi’s salary after his four-year study leave expired, without him reporting back to work or securing an extension. This case forced the apex court to interrogate a critical question: Can an employer be substantively correct in their decision, yet legally wrong in their execution? 

Substantive Legality: No Work, No Pay 

A primary issue for the Court was whether the salary stoppage was substantively justified. Under Section 17 of the Employment Act, an employer’s obligation to pay wages is generally contingent upon the employee’s performance of duty or authorised absence. 

The Court found that, since Dr. Gikenyi’s study leave had lapsed in 2017 and he had failed to seek an extension or to return to his station, he was “absent without leave”. Consequently, the County was substantively justified in withholding pay. The Court clarified that Articles 41 and 43 (Economic and Social Rights) do not create a right to remuneration for periods of unauthorised absence. In the public sector, fiscal accountability dictates that salaries are a return for services rendered. 

The Distinction Between Stoppage and Dismissal 

The appellant contended that the suspension of his salary amounted to “constructive dismissal”, an act that effectively terminated his employment without the protection of Article 236. 

The Supreme Court rejected this view, drawing a sharp line between administrative actions affecting pay and the formal termination of service. Constructive dismissal requires an employer to repudiate the contract fundamentally, leaving the employee with no choice but to resign. Since no letter of dismissal was issued and the employment relationship technically remained intact, the salary stoppage did not constitute a termination of the officer’s status. 

The Procedural Pitfall: Article 47 Compliance 

Despite the County’s substantive justification, the case turned on the “how” rather than the “why.” The Court held that stopping a salary is an administrative action that triggers the requirements of Article 47. 

The County failed to issue a show-cause letter or to provide Dr. Gikenyi with a hearing before halting his pay. This omission rendered the process unlawful. The Court reaffirmed a cardinal principle of Kenyan administrative law: Procedural fairness is not a mere technicality. Even if an employer has a valid reason to stop a salary, they must still follow the “due process” steps of notice and a hearing. Failure to do so renders the action unconstitutional, regardless of the employee’s underlying default. 

Remedies and Judicial Balance 

In determining the remedy, the Court demonstrated a pragmatic approach to equity. While it acknowledged the procedural violation, it declined to award additional damages or salary arrears. The Court noted that the appellant had already benefited from salary payments during parts of his unauthorised absence. 

To award further compensation would be to “unjustly reward substantive default”. This emphasises that while the Court will protect procedural rights, it will not allow those rights to be used as a shield for employee misconduct or as a means of unjust enrichment at the taxpayer’s expense. 

Governance and Policy Implications 

The Magare Gikenyi decision serves as a stern warning to County Public Service Boards and state agencies: 

• Documentation Discipline: Public institutions must maintain rigorous tracking of study leave and employment terms. 

• Procedural Primacy: Substantive justification (being “right” on the facts) does not cure procedural unfairness. 

• Administrative Templates: Human Resources departments must adopt standardised “notice and hearing” protocols for all adverse actions, including salary stoppages and transfers. 

Conclusion 

The Supreme Court has signalled that legality and accountability are the twin pillars of public governance. For the public officer, the ruling reinforces the duty of professional responsibility and communication. For the public employer, it serves as a reminder that the Constitution demands a “fair hearing” before the “axe falls”. Administrative efficiency must never come at the cost of constitutional due process.