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ELRCPartially AllowedNot stated in the judgment· [2014] KEELRC 1418 (KLR)

Wilson K C Shollei v Independent Electoral and Boundaries Commission [2014] KEELRC 1418 (KLR)

Industrial Court of Kenya
18 November 2014
4,373 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court ruled the IEBC wrongly fired an employee facing corruption charges before conviction, because the law requires dismissal only after conviction.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent on 1st September 2012 as Deputy Commission Secretary/Deputy Chief Executive Officer (Support Services) on a renewable five-year fixed term contract, was charged in Anti-Corruption Case No. 16 of 2013 and suspended on half pay under Section 62 of the Anti-Corruption and Economic Crimes Act. By a letter dated 14th August 2014 the Respondent gave notice of intention to terminate on grounds of financial mismanagement, and on 2nd September 2014 terminated his employment, whereupon the position was advertised. The Claimant filed a Memorandum of Claim and a Notice of Motion seeking certiorari, an injunction restraining recruitment to his position, reinstatement of the status quo, and declaratory and compensatory reliefs, alleging breach of Sections 41, 43 and 45 of the Employment Act and violation of Articles 47 and 236(b) of the Constitution. The Respondent opposed, arguing public interest in its electoral mandate, delay, and adequacy of damages. The court held that Articles 47 and 236(b) concern public law and did not directly apply, since the termination was a private-law employment matter. It found the termination unfair for non-compliance with Section 41 of the Employment Act and, further, null and void because Sections 62 and 63 of the Anti-Corruption and Economic Crimes Act, being mandatory, permit dismissal only after conviction. However, the court declined to restrain the Respondent from recruiting to the position, holding its constitutional and statutory mandate must continue. The court declared the termination null and void, ordered that the status quo before termination prevail pending conclusion of the criminal case, dismissed the recruitment injunction, and made no order as to costs.

Key legal issues

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01

Violation of Articles 47 and 236(b) of the Constitution

Holding

The two articles, though relevant, do not directly impact the issues because the dispute is a private-law employer-employee matter, not a public-law one

Reasoning

The court held that both provisions lie in the domain of public law. Although the Respondent is a public body, the termination was carried out in its capacity as the Claimant's private employer, not in its public-law domain. Therefore the constitutional articles, while relevant, do not directly apply to the facts.

p. 5
02

Compliance with Section 41 of the Employment Act

Holding

The Respondent failed to adhere to Section 41's mandatory procedure of explanation and hearing of representations, and no valid reason was established, making the termination unfair under Sections 43 and 45

Reasoning

The Respondent did not contest the Claimant's assertion that Section 41 was not followed; it only justified its action. Section 3(6) makes the Act's terms the minimum terms. Having not submitted other applicable terms, the Employment Act applied. The Claimant was terminated without the hearing prescribed by Section 41.

p. 6
03

Effect of Sections 62 and 63 of the Anti-Corruption and Economic Crimes Act

Holding

Having suspended the Claimant under Section 62, the Respondent was bound by the Act, which permits dismissal only after conviction under Section 63; terminating him earlier was null and void

Reasoning

The provisions of Sections 62 and 63 are couched in mandatory terms: a charged officer is suspended at half pay, suspension ceases on acquittal or withdrawal, and dismissal follows only on conviction where appeal rights lapse or the conviction is upheld. The Respondent demonstrated no other law permitting dismissal, so termination denied the Claimant the benefit of a possible acquittal.

p. 7
04

Injunction restraining filling of the Claimant's position

Holding

The injunction was refused because it would stop the Respondent from exercising its constitutional and statutory mandate; the Respondent is presumed to know the Claimant may be acquitted and should make contingency arrangements

Reasoning

Following Justice Rika in Joab Mehta Oudia v Coffee Development Board of Trustees, the employer is presumed to know an acquitted claimant may return. The court also rejected the argument that job applicants had justiciable rights: applicants acquire no rights until awarded the job, and their rights would not supersede the Claimant's in any event.

p. 7

Legal principles established

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  • Where an employer elects to handle a public officer's case under the Anti-Corruption and Economic Crimes Act, it is bound by the mandatory provisions of Sections 62 and 63, which permit dismissal only after conviction; termination before conviction is null and void
  • Termination without compliance with Section 41 of the Employment Act, and without a valid reason, is unfair under Sections 43 and 45 of the Employment Act
  • Applicants for an advertised job do not acquire justiciable rights capable of protection until awarded the job, save for discrimination claims under Section 5 of the Employment Act
  • The constitutional protections of fair administrative action (Article 47) and due process for public officers (Article 236(b)) concern public law and do not directly govern a private-law employment termination

Court orders

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  1. 1.Declared the termination of the Claimant null and void and ordered that the status quo before the termination of employment prevails pending the conclusion of Anti-Corruption Case No. 16 of 2013
  2. 2.Dismissed the prayer to restrain the Respondent from interviewing, sourcing or employing any other persons to undertake the duties of the offices held by the Claimant
  3. 3.Ordered that there be no orders for costs
Jurisdiction invoked
Employment and labour relations dispute before the Industrial Court under Rule 16 of the Industrial Court (Procedure) Rules; claim filed under the Civil Procedure Act and Industrial Court (Procedure) Rules

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, "Wilson K C Shollei v Independent Electoral and Boundaries Commission [2014] KEELRC 1418 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1418/eng@2014-11-18

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