Ethics and Anti Corruption Commission & 5 others v Ongwenyi & 3 others (Civil Appeal 229 of 2017) [2019] KECA 438 (KLR)
The bottom line
#Kenya's Court of Appeal upheld reinstatement of an EACC officer, ruling the Commission failed to prove his misconduct and denied him a fair hearing.
What this practically means
#Executive summary
#Key legal issues
#Joinder of commission members in their personal capacity
The joinder of the 2nd to 6th appellants was improper and unnecessary because there was no allegation of bad faith.
Article 250(9) of the Constitution and section 20 of the Ethics and Anti-Corruption Commission Act protect members of commissions from personal liability for acts done in good faith in performance of their functions. The Judge below had found the officials could only be liable if they acted in bad faith, yet still allowed the suit against them. The Court found no allegation of bad faith, rendering the joinder improper.
Validity of summary dismissal for gross misconduct
The dismissal was substantively and procedurally unfair.
Under sections 43 and 44 of the Employment Act the employer had to prove the reasons for termination. The investigation report did not explicitly link the 1st respondent to the emails; the IP address belonged to a third party and the mere fact his phone number was near the cyber cafe was insufficient. Further, under section 41 he was neither heard nor given the investigation report before dismissal, in breach of the employer's own Human Resource Manual.
Reinstatement as a remedy
The Judge's reinstatement order was a proper exercise of discretion and was not disturbed.
Section 49(4) of the Employment Act permits reinstatement in very exceptional circumstances. The Judge considered the circumstances of termination, length of service, the conduct of the appellants and inadequacy of damages. The appellate court found no irrelevant or ignored considerations and noted the 1st respondent had already been reinstated in October 2017.
Legal principles established
#- Members of a commission cannot be personally joined in employment litigation absent an allegation of bad faith, per Article 250(9) of the Constitution and section 20 of the EACC Act.
- An employer alleging gross misconduct must prove the reasons for termination to the balance of probabilities and comply with section 41 hearing requirements before summary dismissal.
- Suspicion arising merely from a mobile number registered near a cyber cafe used to send offending emails does not meet the balance of probabilities standard.
- Reinstatement under section 49(4) is discretionary and will only be granted in very exceptional circumstances, but an appellate court will not interfere with that discretion absent misdirection.
Court orders
#- 1.Appeal allowed in part only on the ground of improper joinder of the 2nd to 6th appellants, whose joinder was held improper and unnecessary
- 2.Appeal on the merits (validity of dismissal and reinstatement) dismissed with costs to the 1st respondent
- 3.Reinstatement order of the ELRC left undisturbed
- On appeal from
- Employment and Labour Relations Court
- Jurisdiction invoked
- First appeal to the Court of Appeal under the applicable appellate statutory framework; the underlying dispute arose under the Employment Act and the Ethics and Anti-Corruption Commission Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ethics and Anti Corruption Commission & 5 others v Ongwenyi & 3 others (Civil Appeal 229 of 2017) [2019] KECA 438 (KLR)", Case Analysis (2019). Civil Appeal (Nairobi), judgment delivered 6th August 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/438/eng@2019-08-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.