Judicial Service Commission & another v Muraya (Civil Appeal 421 of 2017) [2019] KECA 891 (KLR)
The bottom line
#Kenya's Court of Appeal overturned an unfair dismissal award, ruling an employee's disciplinary hearing was fair and compensation must follow statutory factors.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent was afforded a fair hearing before dismissal
Yes. The respondent was given detailed written allegations, 21 days to respond, a further 14 days to answer each charge, and was heard by the disciplinary committee before dismissal. The reference to a 'second appeal' was a typographical error that misled and prejudiced no one.
The three-page show cause letter of 11th August 2011 set out every allegation in English and gave 21 days to respond; a further letter allowed 14 days to answer each charge before the hearing on 18th November 2011. The letter inviting the respondent to a hearing of a 'second appeal' was an obvious typological error: no second appeal existed because he had not yet been dismissed, and he knew the hearing concerned the charges in the 11th August 2011 letter. The requirements of section 41 of the Employment Act were substantially met on the evidence.
Whether the trial judge made findings based on unpleaded issues
Yes. Neither party raised or addressed compliance with section 41 of the Employment Act, yet the judge rested her finding of procedural unfairness on that provision.
The respondent's claim and testimony complained of dismissal on quashed grounds, mistreatment and fabricated charges; section 41 compliance was never pleaded or addressed. Citing Odd Jobs v. Mubea, the Court held that unpleaded and unaddressed issues cannot form the basis of a decision. Moreover, the judge did not specify which requirement of section 41 was breached, leaving the matter to conjecture, and the evidence showed reasons were given, time to respond allowed, and representations considered.
Whether the trial judge misapprehended the evidence
Yes. The judge stated the respondent was dismissed on the basis of the proceedings of 12th September 2011, whereas the evidence shows he was heard on 18th November 2011 and dismissed on 6th December 2011 after full consideration of his representations.
The record showed the respondent appeared before the disciplinary committee on 12th September 2011, his response was found inadequate, he was given a further 14 days, and the hearing ultimately took place on 18th November 2011. The finding of an 'advance decision' was contrary to the evidence. Such a clear misapprehension entitled this Court to interfere with the trial court's conclusions on a first appeal.
Whether the award of three months' gross salary as compensation was justified
No. The judge failed to consider the factors in section 49(4) of the Employment Act, rendering the award arbitrary.
Under section 49 of the Employment Act, the court may award up to 12 months' gross salary but must consider the section 49(4) factors, including the wishes of the employee, length of service, circumstances of termination and the employee's contribution to it. The judge adverted to none of these and gave no justification for selecting three months' salary, amounting to failure to consider relevant factors and an improper exercise of discretion warranting appellate interference.
Legal principles established
#- On a first appeal, the appellate court reviews the evidence, evaluates and analyses it and reaches its own conclusions, but will interfere with trial court findings only if unsupported by the evidence or if no tribunal properly applying its mind would have reached them
- Issues not specifically pleaded or addressed by the parties cannot form the basis of a court's decision
- An employer must specify which requirements of section 41 of the Employment Act it allegedly failed to comply with before a finding of procedural unfairness can stand; failure to give reasons or justify compensation under section 49(4) warrants appellate interference
Court orders
#- 1.Appeal allowed
- 2.Award and decree of the Employment and Labour Relations Court dated 20th July 2011 set aside
- 3.Substituted order dismissing Cause No. 508 of 2014
- 4.Each party to bear its own costs
- On appeal from
- Employment & Labour Relations Court
- Cause No. 508 of 2014
- Jurisdiction invoked
- First appeal to the Court of Appeal from the Employment & Labour Relations Court (statutory right of appeal; specific provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Judicial Service Commission & another v Muraya (Civil Appeal 421 of 2017) [2019] KECA 891 (KLR)", Case Analysis (2019). Civil Appeal No 421 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/891/eng@2019-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.