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Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No. 104 of 2016

Farhiya Ibrahim Issack v Wajir County Assembly Service Board [2016] KEELRC 542 (KLR)

Employment and Labour Relations Court of Kenya
29 August 2016
1,893 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered Wajir County Assembly to reinstate an employee it fired without giving reasons, notice, or a hearing, and to pay her full back wages.

What this practically means

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Executive summary

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The Claimant, employed on 14th July 2014 as a Second Clerk Assistant by the Wajir County Assembly Service Board, sued after her employment was terminated by letter dated 3rd December 2015, served on 12th/13th January 2016, taking effect on 31st December 2015. The letter gave no reasons for the termination, and there was no notice, show-cause letter or hearing. She sought a declaration that the termination was unlawful, reinstatement without loss of benefits, general and punitive damages, back wages and costs. The Respondent was served with summons on several occasions but never entered appearance or filed a defence, and the claim proceeded undefended. The court held that under section 43 of the Employment Act the employer must prove the reasons for termination, failing which the termination is unfair under section 45; the letter assigned no reason at all, and notice pay alone cannot justify termination at will. The termination was found arbitrary, without due process and contrary to fair labour practices and fair administrative action required of the Board. Applying precedent, the court granted the Claimant's primary remedy of reinstatement with all back wages and without loss of benefits, to report on duty on 1st September 2016, with back wages payable by 10th September 2016. Damages for the alleged inhuman and degrading treatment were refused as reinstatement with back wages was deemed adequate. Costs of the suit were awarded to the Claimant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the termination of the Claimant's employment was fair, being without notice, reasons or a hearing
  2. 2.What remedies are appropriate, the Claimant seeking reinstatement, back wages and damages

Key legal issues

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01

Whether termination without reasons, notice or hearing was unfair

Holding

The termination was unfair and unlawful

Reasoning

The termination letter of 3rd December 2015 assigned no reason for the termination. Under section 43 of the Employment Act the employer bears the burden of proving genuine reasons existing at the time of termination; absent such proof, termination is unfair under section 45. The Claimant was also given no notice, no show-cause letter and no hearing, contrary to fair procedure and fair administrative action required of the Board. The Respondent, though served, did not appear or rebut the claim.

p. 3
02

Whether reinstatement was an appropriate remedy

Holding

Reinstatement with back wages and without loss of benefits was granted as the primary remedy

Reasoning

The Claimant's principal claim was reinstatement. Relying on section 49 of the Employment Act and precedent where claimants were reinstated as the only appropriate remedy for unfair labour practices, and noting the Respondent's failure to defend the suit, the court found reinstatement would adequately remedy the violations. Damages were refused as reinstatement with back wages sufficed.

p. 3
03

Whether the Respondent, a body corporate, was properly sued

Holding

Yes; the County Assembly Service Board established under the County Governments Act is a body corporate capable of suing and being sued

Reasoning

The court examined sections 12 and 57 of the County Governments Act establishing the County Assembly Service Board, noting it is a body corporate with perpetual succession and a common seal with power to sue and be sued, hence the suit was properly premised. The Respondent was served but chose not to attend despite serious allegations.

p. 2

Legal principles established

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  • An employer must prove genuine reasons for termination; failure to do so renders the termination unfair
  • Termination without notice, hearing or reasons is arbitrary and unfair under section 45 of the Employment Act

Court orders

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  1. 1.A declaration that the Claimant was unfairly terminated from her employment with the respondent
  2. 2.Reinstatement of the Claimant to her employment immediately with payment of all due back wages and without loss of benefits, allowances, promotions due and rights at work
  3. 3.The Claimant to report on duty on 1st September 2016 to the Clerk, Wajir County Assembly Board for allocation of duties
  4. 4.Back wages to be paid not later than 10th September 2016
  5. 5.Costs of the suit to the Claimant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and County Governments Act (no constitutional article cited)

Relief refused

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General and punitive damages for inhuman and degrading treatment

Reinstatement with back wages was deemed an adequate remedy

p. 4

Costs

Costs of the suit awarded to the Claimant ("Costs are claimed and these are due. Costs shall be paid.")

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is not sufficient for an employer to state that notice pay shall be paid and therefore effect termination of employment at will.
p. 3Termination at will impermissible
In this case, the Claimant was not given any notice, a hearing or reasons for the termination that I find was arbitrary, was without due process and contrary to the tenets of fair labour practices and fair administrative action required of the board.
p. 3Unfair termination
b. The Claimant shall be reinstated back to her employment with the Respondent immediately with payment of all due back wages and without loss of any benefits, allowances, promotions due and rights at work;
p. 4Final orders - reinstatement
a. A declaration that the Claimant was unfairly terminated from her employment with the respondent;
p. 4Final orders - declaration
e. Costs of the suit.
p. 4Final orders - costs

Issues in the judgment

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minor

The Board's establishing provision is stated inconsistently in the judgment (section 57 vs section 12 of the County Government Act)

minor

Typographical error in the decretal opening - judgement entered for the Claimant against the Claimant

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, "Farhiya Ibrahim Issack v Wajir County Assembly Service Board [2016] KEELRC 542 (KLR)", Case Analysis (2016). Cause No. 104 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/542/eng@2016-08-29

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