Pravin Bowry v Ethics & Anti-Corruption Commission [2013] KEELRC 55 (KLR)
The bottom line
#A Kenyan court ordered the anti-corruption commission to pay a former director over KShs 35 million after unlawfully terminating his fixed-term contract.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant's contract was frustrated by abolition of office under the Ethics and Anti-Corruption Commission Act, 2011
The contract was not frustrated; it was deliberately terminated by the Respondent because the new Act did not abolish the office of Assistant Director
Section 34 of EACCA does not mention Assistant Directors; that designation appeared in Section 2 of ACECA. Section 9 of ACECA shows there was only one Deputy Director, appointed from among up to four Assistant Directors, so 'Deputy Directors' in Section 34(1) EACCA cannot be read as meaning Assistant Directors. Hansard debates referred only to the Director and Deputy Directors. Without clear parliamentary expression abolishing the office, the court declines to infer abolition, and any termination had to follow the contract and the Employment Act.
Whether deletion of clause (XI) from the Claimant's contract constituted unlawful discrimination
Yes. The Advisory Board's unexplained removal of the compensation clause from the Claimant's contract while retaining it for two other Assistant Directors was unconscionable, unjust and unlawful, entitling the Claimant to the full benefit of clause (XI)
Two Assistant Directors recruited on the same terms and through the same process retained clause (XI) and were paid full remuneration for the unexpired term, while the Claimant did not. RW1 could not explain the disparity. The court applied Section 5(3) and (4) of the Employment Act, ILO Convention No. 111, and Article 27 of the Constitution, holding that Article 27(4)'s use of 'including' leaves grounds of discrimination open-ended. In the absence of any reasonable explanation, the differential treatment was discriminatory and unlawful.
Whether the doctrine of legitimate expectation applies
The doctrine applies. The Claimant had a legitimate expectation of serving the full five-year term, embracing the reasoning of the Attorney General's opinion and the Canadian Supreme Court in Wells v Newfoundland
The court adopted the A.G.'s opinion that officers accepted appointment on the presumption of certainty of law and good faith, and the principle in Wells that a government cannot rely on formal separation of powers to avoid the consequences of its own actions, self-induced frustration not excusing non-performance. Combined with the discrimination finding, legitimate expectation entitled the Claimant to net salary and allowances for the unexpired 46 months of the contract.
Quantum of remedies
Award of Kshs.35,491,983.00 comprising unpaid salary from gazettement (Kshs.628,333), salary for the unexpired 46 months (Kshs.34,684,000 at Kshs.750,000 net per month) and unpaid medical bills (Kshs.179,650), with no interest
The Respondent conceded in cross-examination, uncontroverted, that the practice was to pay appointees from the date of gazettement, proving the arrear salary claim. Net monthly salary of Kshs.754,000 (claimed at Kshs.750,000) was undisputed. Medical bills were evidenced and undefended. Claims dependent on actual performance (allowances, gratuity, renewal option, notice pay) were dismissed; mitigation was accepted.
Legal principles established
#- Where the legislature does not expressly abolish an office, the court will not infer abolition of that office from Hansard or by inference
- A fixed-term public employment contract remains contractual in substance and the general law of contract applies unless expressly superseded by statute
- Unequal treatment of employees in the same cadre without reasonable explanation constitutes unlawful discrimination under Section 5 of the Employment Act and Article 27 of the Constitution
Court orders
#- 1.Respondent to pay the Claimant Kshs.628,333.00 being unpaid salary from the date of appointment to the date of reporting
- 2.Respondent to pay the Claimant Kshs.34,684,000.00 being salary for the unspent period of the contract
- 3.Respondent to pay the Claimant Kshs.179,650.00 being unpaid medical bills
- 4.Total award of Kshs.35,491,983.00
- 5.No interest awarded on the award
- 6.Respondent to pay the Claimant costs of the suit
- Jurisdiction invoked
- Employment and labour relations dispute under the Employment Act No. 11 of 2007 and the contract of employment governed by the repealed Anti-Corruption and Economic Crimes Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pravin Bowry v Ethics & Anti-Corruption Commission [2013] KEELRC 55 (KLR)", Case Analysis (2013). Statement of Claim dated 10th July, 2012 (Industrial Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/55/eng@2013-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.