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ELRCPartially AllowedCause No. 1279 of 2012 (formerly Civil Suit No. 720 of 2007)· [2015] KEELRC 1038 (KLR)

Stephen Rugara Nduhiu v Attorney General [2015] KEELRC 1038 (KLR)

Employment and Labour Relations Court at Nairobi
25 May 2015
HWHellen S. Wasilwa
1,586 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a civil servant's dismissal void because the government reversed his approved early retirement without ever giving him a hearing.

What this practically means

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Executive summary

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The Claimant, a former Clerical Officer in the Office of the President employed on temporary terms from 15th February 1983 and confirmed permanently with effect from 1st August 1989, applied for early voluntary retirement on 14th January 1994 on grounds of ill health after hospitalization. His application was acknowledged, approved on 21st March 1994, and his terminal benefits of Kshs.68,880/= were computed and signed by the Provincial Commissioner as Accounting Officer. However, in 1995 the Respondent cancelled the retirement and purportedly dismissed the Claimant for desertion of duty. The Claimant was never notified of this reversal, never given a hearing, and only learned of the dismissal in 2004 when the Permanent Secretary wrote to his counsel. He sued for his terminal dues, interest, damages and costs after obtaining leave to file out of time; the suit was transferred from the High Court to this Court in 2012. The Respondent defended the suit, asserting the dismissal was lawful and that disciplinary procedures under the Service Commission Act (Cap 185) were followed, but adduced no disciplinary proceedings in evidence. The Court found the early retirement application valid and approved; held the summary dismissal breached natural justice as the Claimant was condemned unheard and no disciplinary proceedings were instituted under Section 23 of Cap 185; declared the dismissal null and void, reverting it to a retirement. The Court awarded retirement benefits of Kshs.68,880/= with interest at court rates from 21st March 1994, punitive damages of Kshs.100,000/=, and costs of the suit to the Claimant.

Key legal issues

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01

Whether the early retirement application was accepted

Holding

The court found the application for early retirement was received, acknowledged and approved, with payments computed by Office of the President staff

Reasoning

The request dated 14/1/1994 was channeled through the Provincial Commissioner who signed it on 21/3/1994. The Safety Net Payment was computed at Kshs.68,880/= by staff including the Internal Auditor and signed by the Accounting Officer. The court rejected the Respondent's denial of these facts as falsehood.

p. 2
02

Whether the cancellation of early retirement and substitution with dismissal was fair

Holding

The dismissal was unfair and unjustified as the Claimant was never heard and no disciplinary proceedings were instituted

Reasoning

The decision to reverse retirement and dismiss was made in 1995 but not communicated until 2004. Though disciplinary proceedings were alleged under the Service Commission Act (Cap 185), the proceedings were not adduced in evidence. Under Section 23 of Part IV of Cap 185, disciplinary proceedings were required before dismissal, and none were instituted. The natural justice precept of audi alteram partem was breached.

p. 3

Legal principles established

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  • No public officer should be dismissed or have a favourable decision reversed without being heard - audi alteram partem applies even where the repealed Employment Act had no express hearing provision

Court orders

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  1. 1.Declaration that the decision to summarily dismiss the Claimant was unfair, unjustified, null and void, reverted to a decision to retire early
  2. 2.Payment of retirement benefits of Kshs.68,880/= plus interest at court rates with effect from 21st March 1994 until payment in full
  3. 3.Punitive damages of Kshs.100,000/=
  4. 4.Respondent to pay costs of the suit

Authorities

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Legislation

  • Service Commission Act (Cap 185 Laws of Kenya)Section 23, Part IV
  • Employment Act (Cap 226 Laws of Kenya) (repealed)
Jurisdiction invoked
Transfer from the High Court Civil Division to the Employment and Labour Relations Court for hearing and disposal

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, "Stephen Rugara Nduhiu v Attorney General [2015] KEELRC 1038 (KLR)", Case Analysis (2015). Cause No. 1279 of 2012 (formerly Civil Suit No. 720 of 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1038/eng@2015-05-25

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