Director General, National Intelligence Service & another v Chelimo (Civil Appeal 645 of 2019) [2024] KECA 606 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed NSIS must reinstate an officer it fired without proving he was given a fair disciplinary hearing.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the dismissal
The dismissal was procedurally unfair because NSIS failed to adduce evidence that the respondent was notified of or attended the disciplinary hearing
The internal memo of 5th January 2015 bore no acknowledgement of receipt and no evidence led proved delivery. The minutes of 16th June 2015 contained nothing to suggest the respondent attended or was summoned. The burden lay on the employer to prove procedural fairness, and this burden was not discharged, contrary to sections 45-47 of the Employment Act, Article 47 of the Constitution and the Fair Administrative Action Act.
Burden of proof in unfair dismissal cases
The employee establishes the dismissal; the employer must prove both valid reason and fair procedure, with no shift of burden between the parties
Applying section 45(2) of the Employment Act, the employer must demonstrate valid and fair reason related to conduct, capacity or compatibility, or operational requirements, and that the termination followed fair procedure. The standard is a balance of probabilities on the reasons the employer genuinely believed to exist. Where misconduct is admitted, the employer must still show substantive fairness of the sanction.
Reinstatement as a discretionary remedy
Reinstatement is discretionary, not automatic, but the trial judge properly exercised her discretion by considering the statutory factors in section 49(4)
Section 12(3) of the ELRC Act permits reinstatement within three years of dismissal. The judge weighed the respondent's advanced age, over thirty years of service, difficulty of securing alternative employment and practicability of reinstatement. NSIS is a large employer and the respondent could be re-deployed, so the Court found no reason to interfere with the exercise of discretion under the Coffee Board principles.
Acquittal in a criminal case is no bar to internal disciplinary processes
Argued by the appellant but not necessary to determine; the appeal failed on the employer's failure to prove fair procedure
Counsel for NSIS submitted that acquittal under section 210 of the Criminal Procedure Code does not preclude administrative disciplinary proceedings on the same facts. The Court did not decide this issue, resting instead on the absence of a fair hearing before dismissal.
Legal principles established
#- In dismissal cases there is no shift of the burden of proof: the employee bears the burden of proving the fact of dismissal, and the employer the burden of proving the fairness of the dismissal
- An employer must prove by tangible evidence, not submissions, that the employee was notified of and accorded a disciplinary hearing before dismissal
- The ultimate test of a fair disciplinary process is whether the employee was given a fair opportunity to state his case before the decision to dismiss is taken
Court orders
#- 1.The appeal is dismissed
- 2.No orders as to costs
- 3.The order of stay issued by the Court on 8th November 2019 is vacated with immediate effect
- On appeal from
- Employment and Labour Relations Court
- Jurisdiction invoked
- First appeal to the Court of Appeal from the Employment and Labour Relations Court (a court of equal status to the High Court), by way of retrial
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Director General, National Intelligence Service & another v Chelimo (Civil Appeal 645 of 2019) [2024] KECA 606 (KLR)", Case Analysis (2024). Civil Appeal (memorandum of appeal dated 13th December 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/606/eng@2024-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.