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ELRCPartially AllowedNot stated in judgment (Cause before the Employment and Labour Relations Court)· [2015] KEELRC 1218 (KLR)

Havelock Lihanda v Uasin Gishu County Service Board [2015] KEELRC 1218 (KLR)

Employment and Labour Relations Court of Kenya
27 March 2015
1,293 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court reinstated a county employee whose dismissal the Public Service Commission had already overturned, and warned employers to act on successful appeals.

What this practically means

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Executive summary

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The Claimant, formerly employed by the Municipal Council of Eldoret and later redeployed within the devolved county structure as a Surveillance Officer, received a show cause letter on 7 June 2013 alleging collusion with shop and kiosk owners to defeat the county's revenue collection and development control mandate. He responded, appeared before a Disciplinary Committee, and was told he had been absolved, but on 18 November 2013 he received a summary dismissal letter citing carelessness and negligence contrary to section 44(4)(c) of the Employment Act. He appealed to the Public Service Commission on 22 November 2013 and filed this Cause on 12 February 2014 alleging unfair, unjustified, biased and unprocedural dismissal. The Respondent filed a Response denying capacity, asserting that the proper employer was the Uasin Gishu County Public Service Board, but neither the Respondent nor its counsel appeared at the hearing on 4 February 2015, and the Cause proceeded undefended. The Public Service Commission, by letter dated 3 November 2014, allowed the Claimant's appeal, yet the Respondent never reinstated him. The court held that reinstatement should have been the natural and logical consequence of the successful appeal, granted prayer 2 of the Statement of Claim, and ordered reinstatement without loss of benefits from the date of dismissal. The court declined costs because the Claimant had notice of the misnomer in the party name but did not amend. The court also observed, without deciding, that the suit may have been premature as it was filed before the Public Service Commission decided the appeal.

Key legal issues

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01

Whether the dismissal was unfair and whether reinstatement should follow

Holding

The dismissal was unfair; the Claimant appealed to the Public Service Commission and his appeal was allowed, so the court ordered reinstatement without loss of benefits.

Reasoning

The Claimant was dismissed for careless and negligent conduct, appealed to the Public Service Commission, and by letter dated 3 November 2014 his appeal was allowed. The Respondent did not appear at the hearing to justify the dismissal or to prove the facts pleaded in its Response. The court held that reinstatement should have been the natural and logical step upon the successful appeal and granted reinstatement from the date of dismissal without loss of benefits.

p. 3
02

Capacity in which the Respondent was sued

Holding

The Respondent denied capacity, pleading that Uasin Gishu County Public Service Board (the actual employer) was not the party sued, but neither attended the hearing; the court treated the misnomer as an non-prejudicial irregularity and proceeded to do substantive justice.

Reasoning

The Response pleaded that the Uasin Gishu County Public Service Board was not the party sued and denied any employment relationship. Neither the Respondent nor the Board attended the hearing to pursue the anomaly. The court noted the Claimant was put on notice and could have amended but did not, yet elected to examine the Cause on the evidence to achieve substantive justice, treating the misnomer as an irregularity causing no prejudice.

p. 2
03

Prematurity of filing suit before the Public Service Commission decided the appeal

Holding

The court observed that the suit may have been premature but, having not been addressed on the timelines under the Service Commission Act, declined to make a determination.

Reasoning

The Claimant filed suit on 12 February 2014, before the Public Service Commission communicated its decision of 3 November 2014 allowing his appeal. The court noted it was debatable whether an unfair termination claim is competent before statutory appeal provisions are exhausted, but since it was not addressed on the timelines in the Service Commission Act, it said no more on the point.

p. 2

Legal principles established

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  • Where an employee's appeal to the Public Service Commission succeeds, the employer should reinstate the employee as the natural and logical consequence.
  • Pleadings comprise facts constituting the cause of action which must be proved in evidence.

Court orders

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  1. 1.The Claimant be reinstated to his duties and/or place of work as per the terms and conditions of contract between him and the Respondent without loss of benefits from date of dismissal
  2. 2.No order as to costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Constitution (not expressly stated in the judgment)

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, "Havelock Lihanda v Uasin Gishu County Service Board [2015] KEELRC 1218 (KLR)", Case Analysis (2015). Not stated in judgment (Cause before the Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1218/eng@2015-03-27

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