Abdalla Mohamed Mchinga v Attorney General [2014] KEELRC 924 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the interdiction, suspension and reduction in rank were unfair for want of a hearing
Yes - the interdiction, suspension and reduction in rank were unfair and set aside for want of due process
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.
Whether the claimant was entitled to baggage allowance for the transfer from Nairobi to Baringo
Yes - the respondent was ordered to pay Kshs.20,580.00 for the Nairobi to Baringo posting
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.
Whether the claimant was entitled to a certificate of service
No - the prayer was misconceived and failed
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.
Legal principles established
#- 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
#- 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.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.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.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.The respondent to pay the costs of the suit
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.