Wilson K C Shollei v Independent Electoral and Boundaries Commission [2014] KEELRC 1418 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Violation of Articles 47 and 236(b) of the Constitution
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
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.
Compliance with Section 41 of the Employment Act
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
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.
Effect of Sections 62 and 63 of the Anti-Corruption and Economic Crimes Act
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
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.
Injunction restraining filling of the Claimant's position
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
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.
Legal principles established
#- 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
#- 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.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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.