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ELRCPartially AllowedCause 235 of 2012· [2012] KEELRC 148 (KLR)

ALI MAHMUD MBWARALI V MINISTRY OF LANDS & 2 OTHERS [2012] KEELRC 148 (KLR)

Industrial Court of Kenya
30 October 2012
MOMaureen Onyango
1,589 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a civil servant's dismissal was unfair due to procedural failures, but his own unauthorised absence reduced his compensation.

What this practically means

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Executive summary

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The claimant, a permanent civil servant of the Public Service Commission for 22 years rising to PA/OC (Nairobi), applied in January 2005 for study leave to pursue a degree at Kenyatta University. His application was declined for non-compliance with the Departmental Training Committee protocol and because the course did not conform to his Scheme of Service. He nevertheless remained away from duty from 25 April 2005, assuming his application for unpaid study leave would be granted. The Permanent Secretary stopped his salary from 1 May 2005 and required him to show cause; he only replied in June 2005 and then did nothing until June 2008, near the end of his course. He was dismissed by letter dated 1 December 2009; his appeal was rejected in May 2012. He sought a declaration that the dismissal was unlawful, compensation, reinstatement or re-engagement, or in the alternative terminal dues and a certificate of service. The court found the respondents had valid grounds because of the claimant's unauthorised absence, but held the dismissal procedurally unfair since it was concluded without notice almost three years later, contrary to section 41 of the Employment Act 2007. Applying section 49 and considering the claimant's own culpability against his long unblemished service, the court declined reinstatement and instead ordered that the dismissal be reduced to retirement in the public interest, the period of unauthorised absence be treated as unpaid leave, one month's salary in lieu of notice be paid, and pension be computed as if he left on 30 April 2005. There were no orders as to costs.

Key legal issues

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01

Validity of grounds for termination

Holding

Valid - claimant deserted duty after study leave was declined

Reasoning

The claimant applied for study leave which was declined on procedural grounds and for lack of conformity with his Scheme of Service. He nonetheless stayed away from duty from 25 April 2005, made no attempt to resume or regularize his absence, and only followed up in June 2008 near the end of his course. The court therefore found the respondents had valid reasons to dismiss him.

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02

Procedural fairness of dismissal

Holding

Dismissal procedurally unfair - concluded without notice almost 3 years later

Reasoning

Although valid grounds existed, the respondents left the disciplinary matter unresolved for nearly three years and then dismissed the claimant without notice, contrary to section 41 of the Employment Act 2007 which was in force at the time. The delay and failure to follow the statutory disciplinary procedure rendered the dismissal unfair despite the validity of the grounds.

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03

Appropriate remedies

Holding

Compensation tempered by claimant's culpability - conversion to retirement in public interest with notice pay and pension

Reasoning

Section 49 of the Employment Act requires consideration of the employee's culpability. Since the claimant caused his own predicament by absenting himself, reinstatement and re-engagement were refused. Yet his 22 years of unblemished service warranted relief: conversion of dismissal to retirement in the public interest, notice salary, and pension computed as at 30 April 2005.

p. 3

Legal principles established

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  • An employer with valid reason to dismiss must nonetheless comply with the fair disciplinary procedure under section 41 of the Employment Act; failure renders the dismissal unfair.
  • Burden of proof lies on the party who would fail if no evidence were given; a claimant must place all material evidence before the court.

Court orders

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  1. 1.The dismissal of the Claimant be reduced to retirement in public interest
  2. 2.The period the Claimant was away without authority be treated as non incremental earning leave without pay
  3. 3.Payment of 1 months' salary in lieu of notice based on his salary of April 2005
  4. 4.Payment of pension as if he left employment on 30th April 2005
  5. 5.No orders for costs

Authorities

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Legislation

  • Employment Actsections 41, 49, 50
  • Evidence Actsection 108

Cases cited (2)

  • Githinji Karoki versus Egerton University
    Nakuru Civil Appeal No.47 of 2006
  • Stephen Wasike Wakhu & another V Security Express Limited
    Nairobi HCCC No.292 of 2002
Jurisdiction invoked
Industrial Court of Kenya, Employment and Labour Relations jurisdiction under the Employment Act 2007 (Cause filed under its employment jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "ALI MAHMUD MBWARALI V MINISTRY OF LANDS & 2 OTHERS [2012] KEELRC 148 (KLR)", Case Analysis (2012). Cause 235 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/148/eng@2012-10-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.