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ELRCPartially AllowedStatement of Claim dated 10th July, 2012 (Industrial Court, Nairobi)· [2013] KEELRC 55 (KLR)

Pravin Bowry v Ethics & Anti-Corruption Commission [2013] KEELRC 55 (KLR)

Industrial Court of Kenya (now Employment and Labour Relations Court)
18 December 2013
6,319 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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The Claimant, a former Assistant Director (Legal Services) of the defunct Kenya Anti-Corruption Commission, sued the Ethics and Anti-Corruption Commission, his employer's successor, claiming Kshs.82,455,715.93 after his five-year fixed-term contract was terminated on 1st September 2011 on the ground that his office had been abolished by the Ethics and Anti-Corruption Commission Act, 2011. The Respondent maintained the termination was lawful by operation of law and that payment of a six-month winding up allowance of Kshs.3,108,745 was full and final settlement. The court framed four issues: frustration, discrimination, legitimate expectation and remedies. On the first, it held that Section 34 of the new Act did not mention Assistant Directors, that Hansard referred only to the Director and Deputy Directors (there being only one Deputy Director under the repealed ACECA), and that abolition of the office could not be inferred; the contract was therefore deliberately terminated, not frustrated. On discrimination, the unexplained removal of clause (XI) - compensation for premature termination and abolition of office - from the Claimant's contract while it was retained for two counterparts of equal rank offended Section 5 of the Employment Act and Article 27 of the Constitution. Legitimate expectation was also held to apply, following the Attorney General's opinion and Wells v Newfoundland. The court awarded Kshs.35,491,983 comprising arrear salary from gazettement (Kshs.628,333), salary and allowances for the unexpired 46 months (Kshs.34,684,000) and unpaid medical bills (Kshs.179,650), refusing claims premised on anticipated renewal, notice pay, service-dependent allowances, gratuity for the unserved term, general damages and interest, and ordered the Respondent to pay costs for ignoring the Attorney General's settlement advice.

Key legal issues

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01

Whether the Claimant's contract was frustrated by abolition of office under the Ethics and Anti-Corruption Commission Act, 2011

Holding

The contract was not frustrated; it was deliberately terminated by the Respondent because the new Act did not abolish the office of Assistant Director

Reasoning

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.

p. 10
02

Whether deletion of clause (XI) from the Claimant's contract constituted unlawful discrimination

Holding

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)

Reasoning

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.

p. 11
03

Whether the doctrine of legitimate expectation applies

Holding

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

Reasoning

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.

p. 11
04

Quantum of remedies

Holding

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

Reasoning

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.

p. 12

Legal principles established

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  • 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

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  1. 1.Respondent to pay the Claimant Kshs.628,333.00 being unpaid salary from the date of appointment to the date of reporting
  2. 2.Respondent to pay the Claimant Kshs.34,684,000.00 being salary for the unspent period of the contract
  3. 3.Respondent to pay the Claimant Kshs.179,650.00 being unpaid medical bills
  4. 4.Total award of Kshs.35,491,983.00
  5. 5.No interest awarded on the award
  6. 6.Respondent to pay the Claimant costs of the suit

Authorities

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Legislation

  • Anti-Corruption and Economic Crimes ActAct No. 3 of 2003, Sections 2, 8, 9 (repealed Part III)
  • Ethics and Anti-Corruption Commission ActAct No. 22 of 2011, Sections 31, 34, 35
  • Employment ActNo. 11 of 2007, Sections 5(3), 5(4)
  • Constitution of Kenya, 2010Articles 27(1), 27(4), 79 and Section 31(2), 31(3) of the Sixth Schedule (transitional provisions)
  • ILO Convention No. 111 - Convention Concerning Discrimination in Respect of Employment and Occupation, 1958Article I

Cases cited (9)

  • Wells Vs. Newfoundland
  • Relly vs. R.
    [1934] AC 176
  • Numba v Vetsak Cooperative Ltd & Others
    (1996) 17 KH 445 (A) at 460
  • Fedlife Assurance Ltd v. Wolfaordt
    (2001) 12 BLLR 1301 (SCA) para 32
  • R vs. the Hon. Chief Justice of Kenya & others
  • Veronica Muthio Kioko v. Catholic University of Eastern Africa
    Cause No. 1161 of 2020
  • National Trust Co. V. Wong Aviation Ltd.
    (1969) S.C.R. 481
  • Operation Dismantle Inc. v. The Queen
    [1985] 1 S.C.R. 441
  • Fraser v. Public Service Staff Relations Board
    [1985] 2 S.C.R. 455
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

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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, "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.