Havelock Lihanda v Uasin Gishu County Service Board [2015] KEELRC 1218 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the dismissal was unfair and whether reinstatement should follow
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.
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.
Capacity in which the Respondent was sued
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.
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.
Prematurity of filing suit before the Public Service Commission decided the appeal
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.
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.
Legal principles established
#- 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
#- 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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.