Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedPetition No. 793 of 2013· [2015] KEELRC 189 (KLR)

Paul Masinde Simidi v National Oil Corporation of Kenya & another [2015] KEELRC 189 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
30 November 2015
LNLINNET NDOLO
4,317 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court ruled that keeping an employee suspended without a hearing for over a year is unfair dismissal, awarding him Kshs.3 million in damages.

What this practically means

#

Executive summary

#
The Petitioner, a former Internal Audit Manager of the National Oil Corporation of Kenya, petitioned the Industrial Court alleging that the Respondents violated his constitutional rights through warning letters issued without a hearing, termination of his contract on 15th June 2011 without notice or a hearing, subsequent retroactive interdiction, and failure to pay terminal dues. He pleaded that his termination was in retaliation for internal audit reports exposing procurement irregularities and corruption, submitted while he was assisting the Kenya Anti-Corruption Commission. Applying the Anarita Karimi Njeru standard of precision, the Court found that only the complaint on fair labour practices merited examination. It held that the termination, made while the Petitioner was assisting the Commission, was barred by Section 65 of the Anti-Corruption and Economic Crimes Act; that the interdiction founded on the same allegations, imposed without the mandatory Section 41 Employment Act procedure, was equally unlawful; and that the Respondents' own Board had resolved to reinstate him, a resolution never rescinded or implemented. The Court found that keeping the Petitioner on interdiction for over a year amounted to constructive dismissal and an unfair labour practice under Article 41 of the Constitution, and his resignation was a legitimate act of mitigation. On the joinder issue, the Court held the 2nd Respondent, the Managing Director who issued the termination and failed to implement the Board's reinstatement decision, could not claim the corporate cover and was properly joined. Judgment was entered for the Petitioner: Kshs.3,000,000 general damages, terminal benefits to be tabulated and agreed within 30 days with no payment for the period after 16th April 2012, a certificate of service, and costs of the petition.

Key legal issues

#
01

Violation of the right to fair labour practices

Holding

The termination, interdiction and prolonged interdiction of the Petitioner without following the mandatory Section 41 Employment Act procedure, while he was assisting the anti-corruption commission, violated his right to fair labour practices

Reasoning

The Petitioner was terminated on 15th June 2011 while assisting the Kenya Anti-Corruption Commission, contrary to Section 65 of the Anti-Corruption and Economic Crimes Act. The rescinded termination was replaced by an interdiction on the same allegations, without the mandatory Section 41 hearing. He remained on interdiction for over a year while inquiries to the Respondents went unanswered, and the Board's own resolution to reinstate him was never implemented. This created an intolerable situation amounting to constructive dismissal and an unfair labour practice.

p. 8
02

Whether the 2nd Respondent was properly joined

Holding

The 2nd Respondent, as CEO who took the impugned actions and failed to implement the Board's reinstatement decision, bears specific and unique responsibility and is properly joined

Reasoning

While the Court discourages joining officers of corporate bodies acting in their official capacity, that cover does not apply to an officer acting in a lone ranger mode. The 2nd Respondent not only issued the termination letter but also failed to implement the corrective action determined by the Board, so she cannot claim the corporate cover and remains properly joined.

p. 9
03

Precision in pleading constitutional violations

Holding

Applying Anarita Karimi Njeru, only the fair labour practices complaint was pleaded with sufficient precision to merit examination

Reasoning

The Petitioner alleged broad violations of numerous constitutional rights. Following the Anarita Karimi Njeru standard, the Court found the petition did not specify with reasonable precision how each of the many cited rights was violated, and only the fair labour practices complaint warranted examination.

p. 6
04

Entitlement to remedies

Holding

Judgment was entered for the Petitioner against both Respondents in general damages, terminal benefits (subject to agreed tabulation and cut-off), a certificate of service and costs

Reasoning

Having found constructive dismissal and violation of fair labour rights, the Court awarded general damages of Kshs.3,000,000 and directed that terminal benefits be tabulated and agreed within 30 days, with no payment for the period after 16th April 2012 when the Petitioner took up new employment, since mitigation was legitimate.

p. 9

Legal principles established

#
  • A party alleging violation of a constitutional right must state with reasonable precision the right in issue and describe how it was violated
  • The Section 41 Employment Act disciplinary procedure is a minimum employment standard read into all contracts of employment
  • Keeping an employee on interdiction for as long as one year amounts to constructive dismissal and an unfair labour practice under Article 41 of the Constitution
  • An officer of a corporate body who ignores lawful corporate decisions, such as a CEO failing to implement Board resolutions, cannot claim the corporate cover and is properly joined personally
  • If the termination of employment was unlawful under the Anti-Corruption and Economic Crimes Act, the subsequent interdiction founded on the same facts was equally unlawful

Court orders

#
  1. 1.Kshs.3,000,000 in general damages against the 1st and 2nd Respondents
  2. 2.Terminal benefits to be tabulated and agreed upon by Counsel for the parties within 30 days from the date of the judgment, with no payment for the period after 16th April 2012 when the Petitioner took up employment with Wananchi Group
  3. 3.An order that the Respondents issue the Petitioner with a certificate of service
  4. 4.An order that the Respondents pay the costs of this petition

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 2(1) & (4), 3(1), 10, 19, 20(1), (2) & (4), 21(3), 23, 24, 25(a) & (c), 27, 28, 29(d) & (f), 33(1)(a), 35, 40(1)(a), 41(1) & (2), 46(1)(c), 47(1) & (2), 50(1) & (2), 73(2), 232(1), 236
  • Employment Act, 2007Sections 5, 9, 10, 35, 36, 41, 43, 44(2) & (4), 45, 47, 49, 50, 51, 74, 75, 76, 87
  • Public Officer Ethics Act, 2003Sections 8, 9, 10, 17, 18, 19, 22(a), 24
  • Anti-Corruption and Economic Crimes Act, No. 3 of 2003Section 65
  • Public Procurement and Disposal Act, 2005

Cases cited (4)

  • Anarita Karimi Njeru v R
    [1979] KLR 124
  • GMV v Bank of Africa Kenya Limited
    [2013] eKLR
  • Nicholas Mwenda Mtwaruchiu and 7 Others v Ethics and Anti Corruption Commission and 3 Others
    [2014] eKLR
  • Emmanuel Mutisya Solomon Vs Agility Logistics
    Industrial Court Cause No 1448 of 2011
Jurisdiction invoked
Articles 19, 20, 23, 41, 47 and 236 of the Constitution of Kenya, 2010, read together with Sections 5, 35, 41 and 44 of the Employment Act, 2007

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Paul Masinde Simidi v National Oil Corporation of Kenya & another [2015] KEELRC 189 (KLR)", Case Analysis (2015). Petition No. 793 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/189/eng@2015-11-30

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