Kenya Revenue Authority v James Omondi Were [2020] KECA 643 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed employers can't retire or dismiss employees on new charges without notice and a hearing, but reinstatement is rarely granted.
What this practically means
#Executive summary
#Key legal issues
#Fairness of the retirement process 'in the Authority's interest'
The process was flawed, unfair and unlawful because the Respondent was retired on a new allegation of conflict of interest without a notice to show cause or an opportunity to be heard, contrary to sections 41 and 43 of the Employment Act.
The Disciplinary Committee had exonerated the Respondent of the original allegations. The employer then retired him on a new charge of conflict of interest never brought to his notice. The court adopted the Janet Nyandiko synthesis of sections 41, 43 and 45 of the Employment Act, requiring a valid reason and due process including notice, hearing and consideration of representations. The trial judge's finding of unfair termination was therefore affirmed.
Computation of the three-year period for reinstatement under section 12(3)(vii) of the ELRC Act
The three-year period runs from dismissal, not interdiction; the interdiction period is excluded, so the trial judge committed no error in computing time. However, reinstatement was no longer an efficacious remedy given the time elapsed.
Section 12(3)(vii) permits reinstatement only within three years of dismissal. From 12 October 2015 to 31 July 2018 less than three years had lapsed, so the order was within the statutory window. The court nonetheless held that reinstatement is discretionary and exceptional, and given the time passed since the 2015 termination, it substituted compensation instead of reinstatement.
Whether the trial court properly applied section 49 of the Employment Act in assessing compensation
The award of back payment was erroneous to the extent it ignored that the Respondent was on half pay and performing no duties; back payment was limited to the withheld half pay, plus six months' salary as compensation for unfair termination.
Remedies under section 49 are discretionary and must be assessed against the thirteen considerations in section 49(4), including the employee's contribution and mitigation. Compensation is not meant to unjustly enrich an employee but to redress economic injury. As the Respondent was on half pay throughout and performed no duties, full back payment was unjustified; the court sustained back payment only for the withheld half pay and awarded six months' salary as compensation.
Legal principles established
#- An order for reinstatement under section 12(3)(vii) of the ELRC Act can only be made within three years of dismissal, and time starts running from dismissal, not from interdiction; the period of interdiction is excluded from the computation.
- Reinstatement is a discretionary remedy, not an automatic right, and should only be granted in very exceptional circumstances after considering the section 49(4) factors.
- An employer must follow sections 41 and 43 of the Employment Act before terminating employment on a new charge: the employee must be notified of the allegations and given an opportunity to be heard.
- Sections 12 of the ELRC Act and section 49 of the Employment Act must be read together in awarding remedies for unfair termination.
Court orders
#- 1.The appeal partially succeeds
- 2.The order declaring the Appellant's termination of the Respondent's employment with them unfair and unlawful is affirmed
- 3.The order of retirement 'in the Authority's interest' which has been vitiated is commuted to normal retirement with full benefits
- 4.The order on reinstatement is vitiated and set aside
- 5.The order for back payment is sustained but limited to payment of the half pay salary withheld by the employer during the period of interdiction
- 6.The Respondent is awarded six month's salary as compensation for the unfair and unlawful termination
- 7.Interest on all monetary awards granted above is allowed at court rates from the date of Judgment in the trial court
- 8.Each party to bear own costs
- On appeal from
- Employment and Labour Relations Court of Kenya at Nairobi
- Employment and Labour Relations Cause No. 974 of 2017
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (statutory appeal from the ELRC); no specific constitutional or statutory provision invoked in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Extra Mile Ltd v Mwai & 2 others (Civil Appeal 456 of 2019) [2026] KECA 712 (KLR)[2026] KECA 712 (KLR)25 Mar 2026
- Mwirigi v Cabinet Secretary, Ministry of Gender, Culture, Arts & Heritage & 2 others; Women Enterprise Fund Advisory Board (Interested Party) (Employment and Labour Relations Petition E206 of 2023) [2024] KEELRC 623 (KLR)[2024] KEELRC 623 (KLR)13 Mar 2024applied
- Kitema v Kenya Power and Lighting Company Limited[2022] KECA 859 (KLR)10 Jun 2022applied
- Michael Kinyanjui Mburu v Kenyatta University [2021] KEELRC 2291 (KLR)[2021] KEELRC 2291 (KLR)22 Jan 2021applied
Cite this brief
#Cite this brief
Caselaw, "Kenya Revenue Authority v James Omondi Were [2020] KECA 643 (KLR)", Case Analysis (2020). Civil Appeal No. 406 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/643/eng@2020-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.