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ELRCPartially AllowedNot stated in the judgment· [2016] KEELRC 337 (KLR)

Geoffrey Rono v Nakuru County Ap Commander & 2 others [2016] KEELRC 337 (KLR)

Employment and Labour Relations Court
11 November 2016
1,290 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 ruled an Administration Police officer's dismissal unlawful because the employer failed to prove its forgery allegations, awarding him over Kshs 1 million in unpaid wages.

What this practically means

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Executive summary

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The Claimant, an Administration Police Constable appointed in March 2005, sued the Respondents on 8 September 2014 alleging unlawful dismissal and seeking a declaration that the dismissal was wrongful, together with other remedies. The Respondents did not attend the hearing on 19 November 2015; the Cause proceeded undefended, though their documentation suggested the Claimant had forged reinstatement letters and that a hearing preceded dismissal. After a failed attempt to reopen the hearing, judgment was reserved. The Court framed two issues: whether the dismissal was unlawful, and the appropriate remedies. On procedure, the Court found material showing orderly room proceedings were conducted on 8 December 2010, and declined to find the 2010 dismissal procedurally irregular. However, on validity, the Respondents' allegation of forgery was not proved, as they did not appear to demonstrate it or prefer criminal charges, and the Court found the purported 2014 dismissal unlawful, relying on Article 236 of the Constitution protecting public officers from disciplinary action without due process. On remedies, the Court held the Employment Act, 2007 inapplicable to Administration Police members, excluding statutory compensation under section 49(1)(c) and statutory reinstatement. The Claimant's unchallenged testimony that he went unpaid was accepted, and wages of Kshs 1,014,955/- from 2010 to 2014 were awarded. Allowances, compensation of Kshs 297,060/-, income up to retirement, and reinstatement were all declined for want of contractual or legal foundation. Costs were awarded to the Claimant. The Court also admonished public officials who fail to protect the public interest in litigation.

Key legal issues

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01

Whether the dismissal was procedurally fair

Holding

The Court was unable to find that the 2010 dismissal was tainted with procedural irregularities, as material showed a hearing was conducted.

Reasoning

Although the Claimant contended he was not heard before the 2010 dismissal, there was material on record showing orderly room proceedings were conducted on 8 December 2010. The Court also observed that the Claimant appeared to be withholding material information, including whether he appealed to the Public Service Commission. Courts determine disputes on the basis of relevant material placed at their disposal, and on that material no procedural irregularity in 2010 was established.

p. 2
02

Validity of the later (2014) dismissal

Holding

The purported dismissal of the Claimant in 2014 was unlawful as the forgery alleged by the Respondents was not proved.

Reasoning

The Respondents' case, gleaned from documents, was that the Claimant forged reinstatement letters, but they failed to appear at the hearing to demonstrate the forgery. Due process required them to follow proper disciplinary procedure and, if warranted, prefer criminal charges. On the material before it, the Court found the forgery unproved and the dismissal unlawful.

p. 3
03

Applicability of the Employment Act and available remedies

Holding

The Employment Act, 2007 does not apply to the Claimant as a member of the Administration Police Service, so statutory compensation under section 49(1)(c) and statutory reinstatement were unavailable; wages were awarded as claimed.

Reasoning

The Court held the Employment Act, 2007 inapplicable to Administration Police Service members, excluding the section 49(1)(c) compensatory remedy and statutory reinstatement. The Claimant's unchallenged testimony that he was unpaid from 2010 to 2014 was accepted, and wages of Kshs 1,014,955/- awarded. Other heads of relief lacked contractual or legal foundation and were declined.

p. 3

Legal principles established

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  • The Employment Act, 2007 does not apply to members of the Administration Police Service, but Article 236 of the Constitution protects all public officers from disciplinary action without due process of the law.
  • An employer alleging forgery as a basis for dismissal must prove it, including by following due process or preferring criminal charges.

Court orders

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  1. 1.Declaration that the dismissal of the Claimant was unlawful
  2. 2.Respondents to pay the Claimant wages from 2010 to 2014 of Kshs 1,014,955/-
  3. 3.All other heads of relief are dismissed
  4. 4.Claimant to have costs

Authorities

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Legislation

  • Employment Actsection 49(1)(c)
  • Constitution of Kenya, 2010Article 236
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the employment dispute; Article 236 of the Constitution on protection of public officers

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, "Geoffrey Rono v Nakuru County Ap Commander & 2 others [2016] KEELRC 337 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/337/eng@2016-11-11

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