Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in judgment· [2014] KEELRC 238 (KLR)

Moses Majale Shavaleji v Ps Ministry of Lands & another [2014] KEELRC 238 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
18 September 2014
HWHellen S. Wasilwa
1,570 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court ruled a public servant was unfairly dismissed because his employer never gave him a hearing, awarding him over Kshs 633,216.

What this practically means

#

Executive summary

#
The claimant, a public servant transferred to the Ministry of Lands, Kakamega, was suspended, interdicted and ultimately dismissed following allegations that he was found carrying envelopes containing official search certificates and a tampered green card. He was charged in Kakamega Criminal Case No. 387/2010 with offences including stealing by a person employed in the public service and forgery of a stamp, but was acquitted under Section 215 of the Criminal Procedure Code on 27.1.2011. His dismissal preceded the conclusion of the criminal case, and although his appeal to the Public Service Commission was rejected, a letter disallowing his dismissal was later sent and then cancelled. He claimed unlawful and wrongful termination, seeking reinstatement and unpaid salary. The court framed three issues: validity of the reason for dismissal, procedural fairness, and entitlement to relief. It found the reasons for dismissal unproven on the evidence, noting the criminal acquittal, and held that although the claimant replied in writing to a show-cause letter, he was never accorded a hearing as required by Section 41 of the Employment Act, Article 50(1) of the Constitution and the PSC Discipline Manual, rendering the dismissal null and void. Reinstatement was refused because the three-year window under Section 12(3)(vii) had lapsed. The court awarded compensation of 12 months' salary plus salary lost to date, totalling Kshs 633,216, a certificate of service, and costs, while directing that pension and NSSF claims be pursued under the relevant statutes.

Key legal issues

#
01

Whether there was a valid reason for dismissal

Holding

The reasons alleged could have been valid if proven, but were not established on the evidence

Reasoning

The allegations mirrored the criminal charge on which the claimant was acquitted under Section 215 of the Criminal Procedure Code. The respondents failed to prove the documents were found in the claimant's possession in culpable circumstances, as his defence of mistakenly carrying the envelope was not displaced.

p. 2
02

Whether due process was followed before dismissal

Holding

Although interdiction and a show-cause response preceded dismissal, no hearing was afforded as required by Section 41 of the Employment Act, Article 50(1) of the Constitution and the PSC Discipline Manual

Reasoning

The claimant replied in writing to the show-cause letter, but the court found no evidence of a hearing where he could defend himself as envisaged by Section 41 of the Employment Act and Article 5(11)(a) of the Discipline Manual. The right to a fair hearing under Article 50(1) was thus flouted, rendering the dismissal null and void.

p. 3

Legal principles established

#
  • An employee must be accorded a hearing before termination under Section 41 of the Employment Act and the PSC Discipline Manual; dismissal without hearing is null and void

Court orders

#
  1. 1.Declaration that the decision made against the claimant, including dismissal, was null and void
  2. 2.12 months' salary as compensation for unlawful termination (Kshs 148,992)
  3. 3.Salary lost from time of dismissal to date (Kshs 484,224), totalling Kshs 633,216
  4. 4.Claimant to pursue pension and NSSF claims under the relevant statutes
  5. 5.Claimant to be issued with a certificate of service
  6. 6.Respondent to pay costs of the suit

Authorities

#

Legislation

  • Penal CodeSections 352(b) and 28
  • Criminal Procedure CodeSection 215
  • Employment ActSection 41 (and 42(1), 44(3)-(4) referenced therein)
  • Constitution of Kenya 2010Article 50(1)
  • Public Service Commission of Kenya Discipline Manual July 2008Article 5 (part 11) para (a)
Jurisdiction invoked
Employment and labour relations jurisdiction, including Section 12(3)(vii) empowering reinstatement within 3 years of dismissal

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Moses Majale Shavaleji v Ps Ministry of Lands & another [2014] KEELRC 238 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/238/eng@2014-09-18

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