John Muchina Kimemia v Chairman, Public Service Commission & 2 others [2015] KEELRC 33 (KLR)
The bottom line
#Kenya's Employment Court ruled that an employer can lawfully dismiss an employee who is in custody for over 14 days without pay or reinstatement.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petitioner's dismissal for alleged absconding violated Articles 25, 27, 47, 48 and 50 of the Constitution
No violation found; the Petitioner's own circumstances - conviction and custody from May 2006 until December 2011 - justified the summary dismissal and no statutory duty rested on his supervisor to report his whereabouts
The Court reasoned that the employment relationship is governed by the Constitution, statutes and the contract. Section 44(4) of the Employment Act, 2007 permits summary dismissal where an employee in custody is not released within 14 days. The Petitioner, convicted and in custody, was unavailable for duty and did not communicate with his employer. The alleged statutory duty on the supervisor lacked legal basis.
Whether the Petitioner was entitled to compensation and reinstatement
Both remedies refused: no violation was established and reinstatement is exceptional given the lapse of time
The Court held that constitutional compensation presupposes a violation, which was not found. Reinstatement is granted only in exceptional circumstances and must be mitigated by the claimant; the lengthy lapse from 2006 to 2013 defeated it. The Petitioner also failed to prove when his salary was stopped, so no dues were quantified.
Whether the Petitioner was entitled to salary dues
Salary until the date of termination (18 February 2008) was legally due as of right, but none was awarded for lack of proof and analysis
The Court found the Petitioner entitled in principle to salary up to termination, but since he did not state when his salary was stopped and the Court lacked a basis to analyse the dues, no award was made. The delay in communicating the dismissal was noted.
Legal principles established
#- Where an employee is arrested for a cognisable offence and is not released on bail or bond within 14 days, the employer may lawfully treat the employee as summarily dismissible under section 44(4) of the Employment Act, 2007
- The duty to communicate one's circumstances to the employer and to protect one's own employment interests rests on the employee, not the supervisor or the employer
- An employer must prove valid and fair reasons for termination, being the reasons the employer genuinely believed to exist at the time of termination, per section 43 of the Employment Act
Court orders
#- 1.The Petition is dismissed
- 2.No orders as to costs despite the Respondents not entering appearance
- Jurisdiction invoked
- Original constitutional and human rights jurisdiction under Articles 25, 27, 47, 48 and 50 of the Constitution; petition originally filed in the High Court (Petition No. 576 of 2013) and transferred to the ELRC by directions of 23 June 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Muchina Kimemia v Chairman, Public Service Commission & 2 others [2015] KEELRC 33 (KLR)", Case Analysis (2015). Petition No. 58 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/33/eng@2015-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.