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ELRCPartially AllowedIndustrial Court Cause (Nakuru), claim filed 17.07.2012 (exact cause number not stated in judgment)· [2014] KEELRC 924 (KLR)

Abdalla Mohamed Mchinga v Attorney General [2014] KEELRC 924 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
4 April 2014
1,034 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan civil servant disciplined without a face-to-face hearing won his case—written replies alone don't satisfy the Employment Act.

What this practically means

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Executive summary

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The claimant, a civil servant employed as an Accounts Assistant (II) in Job Group G, sued the Government seeking general and exemplary damages for unlawful interdiction, suspension and demotion, a certificate of service, costs and interest. He had been interdicted with effect from 20.04.2006 over alleged embezzlement of Kshs.172,800.00 in students' examination funds, later suspended from 15.11.2006 and surcharged Kshs.124,407.00, and then reduced in rank for gross misconduct. On each occasion he was given 21 days to make written representations but was never invited to a hearing. The respondent sought dismissal of the claim. Parties relied on documents and pleadings without calling witnesses. The court framed two issues: whether the interdiction, suspension and demotion were unfair; and whether the claimant was entitled to baggage allowance and a certificate of service. Holding that section 41 of the Employment Act, 2007 entitles an employee to notice and a hearing, and that agreed written-representation procedures cannot substitute for a hearing, the court found the disciplinary action unfair and set it aside for want of due process. The court further found the claimant entitled to Kshs.20,580.00 baggage allowance for the Nairobi-to-Baringo posting, but rejected the certificate of service prayer as misconceived since he remained in employment. Judgment was entered for the claimant with declarations, computation of dues, payment by 1.05.2014 failing interest from 17.07.2012, and costs against the respondent. Signed, dated and delivered at Nakuru on 4th April 2014 by Byram Ongaya, Judge.

Key legal issues

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01

Whether the interdiction, suspension and reduction in rank were unfair for want of a hearing

Holding

Yes - the interdiction, suspension and reduction in rank were unfair and set aside for want of due process

Reasoning

The claimant was interdicted and later suspended on allegations of embezzlement of students' examination funds and was given 21 days to make written representations. The court found that although notice was served and an opportunity to make written representations given, the claimant was never invited to a hearing as prescribed in section 41 of the Employment Act. Written representations may supplement but cannot substitute for a hearing. Finding him culpable without a hearing violated due process.

p. 2
02

Whether the claimant was entitled to baggage allowance for the transfer from Nairobi to Baringo

Holding

Yes - the respondent was ordered to pay Kshs.20,580.00 for the Nairobi to Baringo posting

Reasoning

The respondent acknowledged paying baggage allowance of Kshs.20,580.00 for the transfer from Baringo Government Training Institute to Nairobi, but there was no evidence of payment of baggage allowance upon the claimant's posting from Nairobi back to the National Registration Bureau at Baringo. Since the claimant travelled from Nairobi to take up the Baringo posting, he was held entitled to the equivalent sum for that movement.

p. 2
03

Whether the claimant was entitled to a certificate of service

Holding

No - the prayer was misconceived and failed

Reasoning

Section 51 of the Employment Act, 2007 provides for issuance of a certificate of service upon termination of employment. It was not disputed that the claimant remained in employment and had not been terminated, so there was no basis for the relief sought.

p. 2

Legal principles established

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  • An agreed disciplinary procedure permitting written representations can only be in addition to, not in substitution for, the hearing envisaged under section 41 of the Employment Act
  • An employee facing disciplinary action is entitled to notice of the misconduct and to be heard; an employee cannot be found culpable without an opportunity to be heard
  • A certificate of service is issued only upon termination of employment under section 51 of the Employment Act, 2007

Court orders

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  1. 1.A declaration that the interdiction, suspension and reduction in rank were unfair and are set aside for want of due process that entailed affording the claimant a hearing
  2. 2.A declaration that the claimant is entitled to full salaries, allowances and benefits flowing from the setting aside, to be computed by the claimant and filed in court in 7 days from the date of the judgment for recording the figures on a date convenient to the parties
  3. 3.The respondent to pay the claimant Kshs.20,580.00 being baggage allowance for the posting from the National Registration Bureau at Nairobi to Baringo
  4. 4.The respondent to pay the dues by 1.05.2014, failing which interest at court rates payable from the date of the suit (17.07.2012) till full payment
  5. 5.The respondent to pay the costs of the suit

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 51
Jurisdiction invoked
Transfer of the suit to the Industrial Court under the Industrial Court Act / Employment and Labour Relations Act (specific provision not cited in the judgment)

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, "Abdalla Mohamed Mchinga v Attorney General [2014] KEELRC 924 (KLR)", Case Analysis (2014). Industrial Court Cause (Nakuru), claim filed 17.07.2012 (exact cause number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/924/eng@2014-04-04

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