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ELRCPartially AllowedCause No 979 of 2012· [2015] KEELRC 573 (KLR)

Fidelius K Michira v Kenya Wildlife Services [2015] KEELRC 573 (KLR)

Employment and Labour Relations Court
14 August 2015
LNLinnet Ndolo
1,925 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, recruited by Kenya Wildlife Services as a Ranger in 1989 and last serving as Assistant Warden II, was interdicted on half pay on 2 September 2009 and removed from service by letter dated 1 March 2010 pursuant to Regulation 12(d) of the Kenya Wildlife Service (Armed Wing) (Disciplinary) Code 1990, on the basis of alleged association in activities prejudicial to good order and discipline following insecurity and thefts at KWS Headquarters in 2009. He claimed notice pay, expected salary and allowances, redundancy, gratuity, severance pay, damages for unfair termination and terminal dues. The respondent alleged the claimant, as commander of the security unit, planned or failed to prevent break-ins and burglaries, and contended that as a uniformed officer under the Disciplinary Code he could be removed without a disciplinary process. The court held that the pleasure principle no longer applies in the public service and that disciplinary regulations derogating from the Constitution and the Employment Act, 2007 must give way. The respondent failed to prove a valid reason for removal under section 43 and breached the mandatory procedure in section 41, having denied the claimant an opportunity to respond to accusations. The removal was held unjustifiable and unlawful. The court awarded 12 months' salary in compensation (Kshs.528,000), one month's salary in lieu of notice (Kshs.44,000), with interest at court rates from the date of the award and costs to the claimant. The claims for expected salary and allowances and for redundancy, gratuity, severance pay and terminal dues were dismissed or abandoned.

Key legal issues

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01

Whether the Claimant's removal from service was justifiable and lawful

Holding

The removal was substantively and procedurally unfair and unlawful.

Reasoning

The respondent removed the claimant under Regulation 12(d) of the Kenya Wildlife Service (Armed Wing) Disciplinary Code without subjecting him to any disciplinary process. Its witnesses confirmed a disciplinary process existed but was not used, and its suggestion that the Director could choose which officers to subject to process was a restatement of the obsolete pleasure principle. The claimant was never given an opportunity to respond to accusations, so the reason for removal was unproven under sections 43 and 45, and the mandatory section 41 procedure was not followed.

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02

Whether the Claimant is entitled to the remedies sought

Holding

Entitled to 12 months' salary compensation and one month's salary in lieu of notice; other heads refused or abandoned.

Reasoning

Given the finding of substantive and procedural unfairness, the court awarded 12 months' salary taking into account the claimant's long service since 1989 and the respondent's callous conduct in the removal process. One month's notice pay was awarded. The claim for expected salary and allowances lacked a basis, and the redundancy, gratuity, severance and terminal dues claims were abandoned at trial.

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Legal principles established

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  • The pleasure principle is no longer applicable in the Kenya Public Service; disciplinary regulations, including those in subsidiary legislation, that derogate from the Constitution and the Employment Act, 2007 must give way.
  • An employer bears the burden under section 43 of the Employment Act to prove the reasons for termination, failing which the termination is deemed unfair.
  • Even uniformed officers governed by a service disciplinary code are entitled to a fair disciplinary process including an opportunity to be heard under section 41 of the Employment Act.

Court orders

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  1. 1.12 months' salary in compensation for unfair termination (Kshs.528,000.00)
  2. 2.1 month's salary in lieu of notice (Kshs.44,000.00)
  3. 3.Interest on the award at court rates from the date of the award until payment in full
  4. 4.Claimant awarded the costs of the case

Authorities

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Legislation

  • Employment ActSection 43(1) and (2)
  • Employment ActSection 45(2)
  • Employment ActSection 41
  • Kenya Wildlife Service (Armed Wing) (Disciplinary) CodeRegulation 12(d)
  • Retirement Benefits Act Regulationsnot specified
  • Official Secrets ActDeclaration Form, Appendix 'E'

Cases cited (2)

  • Richard Bwago Birir v Narok County Government & 2 Others
    [2014] EKLR
  • D.K Njagi Marete v Teachers Service Commission
    [2013] EKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination claim)

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, "Fidelius K Michira v Kenya Wildlife Services [2015] KEELRC 573 (KLR)", Case Analysis (2015). Cause No 979 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/573/eng@2015-08-14

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