Attorney General & another v Crispinus Ngayo Musundi [2017] KECA 338 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a dismissed public officer's right to be heard can be met through written responses, upholding dismissal and cancelling terminal benefits.
What this practically means
#Executive summary
#Key legal issues
#Whether natural justice required an oral hearing before dismissal of a public officer
No. The right to be heard may be satisfied through written representation; whether an oral hearing is necessary depends on the subject matter, circumstances and nature of the decision, and the respondent was given ample opportunity to respond in writing at every stage.
Relying on R v Immigration Appeal Tribunal ex-parte Jones and the Court of Appeal's earlier decision in Kenya Revenue Authority v Murgani, the court held that decision-making bodies are masters of their own procedure provided they achieve the fairness appropriate to their task. The respondent was furnished with the charges, invited to respond in writing, given 21 days to show cause, and his appeal was considered.
Whether the respondent was informed of the charges against him
Yes. The letter dated 19th January 2004 clearly set out the charge of financial mismanagement at Lugari District Treasury with particulars, defeating the claim that he was not informed of the charges.
The court found on the evidence that the Accountant General's letter of 19th January 2004 set out the charge and its details, and the respondent responded in detail to each allegation by his letter of 19th February 2004. The claim of non-notification therefore had to fail.
Whether the dismissal for gross misconduct was wrongful
No. The respondent conceded financial irregularities during his tenure at Lugari District Treasury, and dismissal was proportionate to conduct that caused a total breakdown of the employment relationship.
Applying the contextual test from McKinley v B.C. Tel and Dowling v Workplace Safety and Insurance Board, misconduct warranting dismissal is that which strikes at the heart of the employment relationship. The respondent's concession on cross-examination established the misconduct, and the disciplinary procedure followed the applicable Public Service Commission Regulations made under the Service Commissions Act.
Whether the respondent was entitled to terminal benefits
No. Regulation 28 of the Public Service Commission Regulations, 2005 (repealed) provides that a dismissed public officer forfeits all rights to pension, gratuity, allowance or other retiring award.
Since the dismissal was justified and not wrongful, the trial court's award of terminal benefits aggregating Kshs. 875,235/= had no legal basis. The forfeiture provision applied to a public officer dismissed from service.
Whether the Employment Act, 2007 applied to the dismissal
No. The Act commenced on 2nd June 2008, after the dismissal, and was not applicable to a cause of action arising earlier; the applicable procedure was the Public Service Commission Regulations made under the Service Commissions Act (both repealed).
The court accepted, consistent with the respondent's own concession, that the Employment Act, 2007 was not in force at the time of dismissal, and that the disciplinary procedure adopted by the Commission conformed to the then-applicable regulations.
Legal principles established
#- The right to be heard under the rules of natural justice need not be by oral hearing; written representation satisfies the audi alteram partem rule provided basic fairness procedures are complied with
- On a first appeal, the Court of Appeal must revisit and analyse the evidence afresh and reach its own independent conclusion, bearing in mind it did not see or hear the witnesses
Court orders
#- 1.Appeal allowed
- 2.Impugned judgment of the Industrial Court dated 1st July 2011 set aside
- 3.Respondent's claim filed before the Industrial Court on 19th March 2009 dismissed
- 4.Each party to bear its own costs both in the appeal and in the court below
- On appeal from
- Industrial Court of Kenya (now Employment and Labour Relations Court)
- Industrial Cause No. 120 (N) of 2009
- Jurisdiction invoked
- First appeal to the Court of Appeal under its appellate jurisdiction (Constitution and Appellate jurisdiction Act framework invoked implicitly; judgment frames the appeal as a first appeal requiring fresh evaluation of evidence)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (6)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Muganda v Brookside Dairy Limited & 2 others (Petition E002 of 2025) [2025] KEELRC 2245 (KLR)[2025] KEELRC 2245 (KLR)29 Jul 2025
- G4S Kenya Limited v Arasa (Employment and Labour Relations Appeal E019 of 2022) [2024] KEELRC 2814 (KLR)[2024] KEELRC 2814 (KLR)14 Nov 2024
- Fredrick Odhiambo Walukwe v Cabinet Secretary, Ministry of Interiorand Co-ordination of National Government & 2 others [2020] KEELRC 27 (KLR)[2020] KEELRC 27 (KLR)17 Dec 2020
- Fredrick Odhiambo Walukwe v Cabinet Secretary, Ministry of Interiorand Co-ordination of National Government & 2 others [2020] KEELRC 27 (KLR)[2020] KEELRC 27 (KLR)17 Dec 2020
- Jacinta Wanjiku Keru & another v Ministry of Interior and Coordination of National Government & 2 others [2020] KEELRC 615 (KLR)[2020] KEELRC 615 (KLR)24 Jul 2020
- Francis Mwendwa Titus v Kenya Pipeline Company Limited [2019] KEELRC 2002 (KLR)[2019] KEELRC 2002 (KLR)28 Feb 2019
Cite this brief
#Cite this brief
Caselaw, "Attorney General & another v Crispinus Ngayo Musundi [2017] KECA 338 (KLR)", Case Analysis (2017). Civil Appeal No. 271 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/338/eng@2017-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.