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ELRCPartially AllowedCause No. 63 of 2014· [2016] KEELRC 458 (KLR)

Jones Okero Momanyi v Public Service Commission [2016] KEELRC 458 (KLR)

Employment & Labour Relations Court
8 September 2016
MOMaureen Onyango
2,389 words in judgment
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The bottom line

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A Kenyan court ruled a public officer's dismissal unfair because he was never given a hearing, converting it to retirement with full benefits.

What this practically means

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Executive summary

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The Claimant, employed by the Public Service Commission from 1979 and serving as an Accounts Assistant II deployed as District Cashier, Borabu District, was interdicted in May 2011 on allegations of financial mismanagement and dismissed by letter dated 23rd May 2013 on five grounds, including encashment of VAT cheques totalling Kshs.428,388.70. His appeal and review were rejected. He sued seeking a declaration that the interdiction and dismissal were unprocedural, illegal and null and void, reinstatement with retirement benefits, general damages, costs and interest. The court framed two issues: whether the dismissal was fair and whether the Claimant was entitled to the prayers sought. Applying sections 41, 43 and 45 of the Employment Act, the court held the Respondent proved the validity of the reason for termination only as regards encashment of VAT cheques, holding that an employee must obey only lawful orders. The remaining four allegations were not proved, and no action was taken against the superiors who instructed the Claimant. Procedurally, the Claimant was never called before the disciplinary committee and was condemned without a hearing; further, the same officer handled both the dismissal recommendation and the rejection of his appeal and review, rendering both a sham. The summary dismissal was declared unfair. Reinstatement was refused given the Claimant's age, but the dismissal was converted to retirement with full benefits effective 23rd May 2013, with terminal leave pay of Kshs.168,972 and withheld half salary of Kshs.308,275 awarded, plus costs and interest from the date of judgment. General damages were refused.

Key legal issues

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01

Validity of the reasons for dismissal

Holding

Only the charge of encashment of VAT cheques was proved; the other four allegations were not proved against the Claimant

Reasoning

Applying sections 43 and 45 of the Employment Act, the court found the Respondent proved the validity of the reason for termination regarding VAT cheque encashment, given the Claimant's knowledge of financial regulations and 32 years' experience. However, there was no evidence supporting the other allegations, and notably no disciplinary action was taken against the District Accountant and District Roads Engineer who instructed the Claimant and benefited from the cheques.

p. 5
02

Procedural fairness of the disciplinary process

Holding

The summary dismissal was procedurally unfair because the Claimant was not heard by the disciplinary committee

Reasoning

Although the Claimant responded to show cause and interdiction letters, he was never called to the disciplinary committee hearing that decided his fate. Section 41(2) of the Employment Act requires the employer to hear and consider representations before summary dismissal. Additionally, the same officer, K A Odhiambo, sat on the committee that recommended dismissal and also considered the appeal and review, meaning there was no independent and impartial consideration of either; both were a sham.

p. 6
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Appropriate remedy for unfair dismissal

Holding

Reinstatement refused; summary dismissal converted to retirement with full benefits, plus terminal leave pay and withheld half salary

Reasoning

Reinstatement was held unreasonable given the Claimant's age of about 55 years. However, considering his 34 years of service and comparatively clean record, summary dismissal was an extremely severe punishment, justifying conversion to retirement with full benefits including cash payment for terminal leave. Retrospective effectiveness of dismissal from 1st May 2011 was rejected; retirement date fixed at the dismissal letter date of 23rd May 2013, and withheld half salary during interdiction ordered paid.

p. 6

Legal principles established

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  • The law only requires an employee to obey lawful orders; obedience to unlawful instructions is no defence to disciplinary action
  • An employer must hear and consider an employee's representations before summary dismissal; failure to call the employee to the disciplinary hearing renders the dismissal unfair
  • Dismissal cannot take effect retroactively
  • Reinstatement is discretionary, not automatic, and must be assessed for reasonableness and practicability

Court orders

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  1. 1.Declaration that the dismissal of the Claimant was unfair
  2. 2.An order that the dismissal be converted to retirement with full benefits effective 23rd May, 2013
  3. 3.Payment in lieu of terminal leave of 6 months in the sum of Shs.168,972
  4. 4.Payment of withheld half salary from May 2011 to May 2013 (Shs.12,331 x 25) Shs.308,275/-
  5. 5.Costs of the suit to the Claimant
  6. 6.Interest on decretal sum from date of judgement

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 45(1) and (2)
  • Employment ActSection 49(4)
  • Constitution of KenyaArticles 47 and 50
  • Public Service Commission RegulationsG23, G24, G32, G33
  • Service Commission ActCap 185
  • Public Officer Ethics Act2003
  • Pensions ActCap 169

Cases cited (5)

  • East African Airways v Knight
    [1975] 1 EA 165
  • Barclays Bank of Kenya Limited v Njau
    [2006] 1 KLR 92
  • Paramount Bank Limited v Mohammed Ghias Qureishi & Another
    [2005] eKLR
  • Wells Fargo Limited v Cyrus Kioko & 48 others
    [2015] eKLR
  • Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 others
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, sections 41, 43, 45 invoked); claim alleging violation of Articles 47 and 50 of the Constitution and PSC Regulations

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Jones Okero Momanyi v Public Service Commission [2016] KEELRC 458 (KLR)", Case Analysis (2016). Cause No. 63 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/458/eng@2016-09-08

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