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ELRCDismissedPetition No. 3 of 2015 (formerly Petition Nos. 1 and 2 of 2006, High Court)· [2015] KEELRC 762 (KLR)

Gabriel Mutava v Managing Director Kenya Ports Authority & another [2015] KEELRC 762 (KLR)

Industrial Court of Kenya
17 July 2015
OMO. N. Makau
2,610 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court agreed KPA mishandled the dismissals, but refused all compensation because the employees sued under the wrong legal route.

What this practically means

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Executive summary

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The Petitioners, long-serving employees of the Kenya Ports Authority, were 'retired in Public Interest' on 5 July 2005 under Section G12(a) of the KPA Revised Staff Regulations (2002) after a Committee of Inquiry into irregular overtime payments found them guilty of gross negligence of duty for failing to supervise their departments. They petitioned, contending that they were never charged or heard, in breach of Sections G8 and G12 of the Regulations, the rules of natural justice, and Sections 70, 74(1), 77, 82(2) and 84 of the repealed Constitution; they sought a declaration that the termination was null and void, reinstatement, and salary arrears to age 55. The Respondents maintained the retirement was lawful, that the Petitioners incriminated themselves as witnesses, and objected that the dispute was private law and should have been brought by plaint. The court found the Section G12(a) procedure (notice of specific complaints and opportunity to show cause) was not followed and the retirement breached the Regulations and natural justice. However, it held the right to a hearing before termination was not protected under the repealed bill of rights, being a contractual right under private law, so the petition was improperly founded. All reliefs were refused: reinstatement was barred by retirement age, abatement of the deceased Petitioner's claim, and Section 12(3)(vii) of the Industrial Court Act; salary arrears were contrary to the repealed Employment Act and public policy. The petitions and Petition No. 3 of 2015 were dismissed with each party bearing their own costs.

Key legal issues

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01

Breach of KPA Revised Staff Regulations 2002

Holding

The retirement in public interest breached Sections G8 and G12(a) because the prescribed procedure (notice and show-cause) was not followed

Reasoning

The Managing Director, having received the committee of inquiry report, retired the Petitioners without notifying them of the specific detrimental findings or inviting them to show cause. The court found the Respondents resorted to Section G12 because they had no good cause under Section G2 for dismissal, and that the procedure under G12(a) was not complied with.

p. 4
02

Violation of fair hearing and human dignity under the Constitution

Holding

Although the dismissal breached natural justice, the right to be heard before termination was not protected under the repealed Constitution's bill of rights; it was a contractual right, so the petition was wrongly founded

Reasoning

The court held that at the time of termination the right to be heard before dismissal was a matter of contract under private law, and the employer's status as a public body did not change that. It therefore agreed with the Respondents' procedural objection and answered the second issue in the negative.

p. 5
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Reliefs

Holding

All prayers refused: declaration, reinstatement and salary arrears all declined

Reasoning

The declaration was refused because only a contractual right was breached; reinstatement was impracticable (retirement age, death and abatement of one claim, and the 3-year bar under Section 12(3)(vii) of the Industrial Court Act); salary arrears were contrary to the repealed Employment Act and public policy.

p. 5

Legal principles established

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  • Retirement in public interest under Section G12(a) of the KPA Revised Staff Regulations requires notification of the specific complaints and an opportunity to show cause before termination
  • A breach of contractual employment rights cannot be enforced by constitutional petition; such disputes fall under private law

Court orders

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  1. 1.The Petitions and Petition No. 3 of 2015 are dismissed
  2. 2.Each party to bear his or her own costs

Authorities

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Legislation

  • KPA Revised Staff RegulationsSections G8, G12(a), G2(a)(17), B13
  • Constitution of Kenya (repealed)Sections 70, 74(1), 77, 82(2), 84
  • Constitution of Kenya 2010Article 50
  • Employment Act Cap 226 (repealed)Section 17
  • Industrial Court ActSection 12(3)(vii)

Cases cited (5)

  • Nyongesa & 4 Others Vs. Egerton University
    [1990] KLR page 26
  • Kadamas Vs. Municipality of Kisumu
    [1998] KLR page 954
  • Kenya Bus Services Vs Attorney General and Others
    HC Misc. No. 413 of 2005
  • Teitwanga Vs. Ariong
    [1986] LRC page 518
  • Rashid Odhiambo Vs Haco Industries
    HC Misc. 1520 of 1999
Jurisdiction invoked
Original constitutional petition jurisdiction transferred from the High Court; Industrial Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Gabriel Mutava v Managing Director Kenya Ports Authority & another [2015] KEELRC 762 (KLR)", Case Analysis (2015). Petition No. 3 of 2015 (formerly Petition Nos. 1 and 2 of 2006, High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/762/eng@2015-07-17

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