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Court of AppealDismissedNot stated in the extract· [1988] KECA 58 (KLR)

Okong'o v Attorney-General & another [1988] KECA 58 (KLR)

Court of Appeal
11 May 1988
HPH.G PlattFAF.K ApalooJMJ.R.O Masime
1,767 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that ordinary courts cannot force an employer to reinstate a dismissed worker — damages are the only common-law remedy.

What this practically means

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Executive summary

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The appellant, a Labour Inspector Grade II interdicted and later dismissed with effect from November 21 1980 with loss of all terminal benefits following his conviction for theft of Kshs 540 and placement on probation for two years, sued the Attorney-General seeking reinstatement or, alternatively, his terminal benefits. The High Court (Butler-Sloss J) held for the Minister, construing section 9(1) of the Probation of Offenders Act (cap 64) as confined to enactments imposing disqualification or disability on convicted persons. On appeal, the Court of Appeal at Kisumu (Platt, Apaloo JJA and Masime Ag JA) affirmed. The court held that at common law, as guided by the Law of Contract Act, specific performance of a contract of service has never been ordered because courts cannot force an employee's services on an employer who has lost trust and confidence; the remedy for breach of contract is damages. Although the Industrial Court may order reinstatement, the ordinary courts cannot. On the statutory question, the court held that a probation order does not render regulation 25(3) of the Public Service Regulations applicable: that sub-regulation protects acquitted persons, and termination of employment on conviction is a discretionary contractual matter, not a statutory disqualification or disability within section 9(1). The court relied on the English analogue, section 13 of the Powers of the Criminal Courts Act 1973, and Republic v Akan. Counsel for the appellant abandoned reinstatement and sought terminal benefits in the alternative, but the court declined to enter that inquiry. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Availability of reinstatement

Holding

Reinstatement cannot be ordered as a matter of contract in the Court of Appeal; damages is the remedy for wrongful dismissal

Reasoning

The court, guided by the Law of Contract Act (cap 23) and the common law, held that courts cannot compel an employer to retain an employee in whom confidence has been lost, since such personal contracts cannot be supervised. The Industrial Court may order reinstatement, but an ordinary court cannot. Even under the Employment Act an employer may summarily dismiss for a criminal offence.

p. 2
02

Effect of a probation order under section 9(1) of the Probation of Offenders Act

Holding

A probation order does not prevent dismissal; the section applies only to statutory disqualifications or disabilities, and termination of employment is neither

Reasoning

Dismissal is neither automatic on conviction nor reinstatement automatic on acquittal under the regulations; there is an area of discretion. The termination of a contract under the Public Service Regulations is a contractual/employment action, not the kind of statutory disqualification or disability contemplated by section 9(1), as confirmed by the English analogue and Republic v Akan.

p. 2
03

Application of regulation 25(3) of the Public Service Regulations

Holding

Regulation 25(3) protects acquitted persons, not persons placed on probation after conviction

Reasoning

The liberal view equating a probation order with an acquittal rested on two misconceptions. Section 4 of the Act allows release on probation with or without conviction, but regulation 25(3) deals with acquittals, and where there has been a conviction the regulation cannot be invoked to bar dismissal for the same matter.

p. 2

Legal principles established

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  • A Kenyan court will not order specific performance (reinstatement) of a contract of service; the remedy for wrongful dismissal is damages
  • Section 9(1) of the Probation of Offenders Act applies only to enactments imposing disqualification or disability on convicted persons, not to a contractual termination of employment
  • An employer may summarily dismiss a servant guilty of a criminal offence notwithstanding a probation order

Court orders

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  1. 1.Appeal dismissed with costs to the respondent
On appeal from
High Court at Kisumu
Not stated
Jurisdiction invoked
First appellate jurisdiction of the Court of Appeal (statutory appeal from the High Court); no specific provision stated in the judgment

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, "Okong'o v Attorney-General & another [1988] KECA 58 (KLR)", Case Analysis (1988). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/58/eng@1988-05-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.