KENYA GAME HUNTING & SAFARIS WORKERS’ UNION v RHINO SAFARIS LTD [2003] KEELRC 10 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Bias - complainant acting as dismissing authority
The dismissal order was quashed in effect because the General Manager who levelled and investigated the charges also passed the dismissal
Mr. Lacty de Sousa was the complainant of almost all the charges, the investigator and the punishing authority. The Court held this violated the rule against being a judge in one's own cause and the principle that justice must be seen to be done, citing Rex v Sussex Justices, Ex parte McCarthy. His dismissal order was therefore bad in law and unsustainable.
Right to a fair hearing / natural justice in domestic enquiries
The grievant was denied a fair hearing: he was not given the statements against him nor an opportunity to contradict the evidence before dismissal
Relying on Kanda v Government of Malaya, the Court reiterated that an employee must know the accusation and the evidence supporting it, and must have a fair opportunity to rebut it. The clandestine investigation, conducted in secrecy without hearing the grievant, fell below the barest minimum of a domestic enquiry.
Reliance on stale warnings under the collective agreement
Warnings more than 12 months old should have been expunged under Clause 7 of the collective agreement and could not found dismissal
Clause 7 of the collective agreement provides that warnings lapse after 12 months without offences. The warnings of 25th February 1992 and 23rd November 1995 were stale and should have been cancelled; the Minister's investigation had likewise found the expired warning ought to have been expunged.
Legal principles established
#- No officer can act as prosecutor and judge in his own cause; a dismissal order passed by a person who is the complainant is bad in law and cannot stand
- Dismissal carries serious consequences and requires notice and a fair opportunity to be heard - the barest minimum of a domestic enquiry
- Justice must not only be done but be seen to be done
Court orders
#- 1.That the summary dismissal of the grievant be reduced to normal termination of service
- 2.That the grievant be paid all his terminal benefits, including pay in lieu of notice, gratuity, pay of unavailed leave, if any, in terms of the parties' collective agreement in force at the material time
- 3.That, in addition, the grievant be paid ten (10) months' basic salary as compensation for loss of employment
- Jurisdiction invoked
- Trade Disputes Act, Cap. 234, Section 14(7) and (9)(e) and (f)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "KENYA GAME HUNTING & SAFARIS WORKERS’ UNION v RHINO SAFARIS LTD [2003] KEELRC 10 (KLR)", Case Analysis (2003). Cause No. 114 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2003/10/eng@2003-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.