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ELRCPartially AllowedIndustrial Cause Number 186 of 2013· [2016] KEELRC 971 (KLR)

Ezekiel Nyangoya Okemwa v Kenya Marine & Fisheries Research Institute [2016] KEELRC 971 (KLR)

Industrial Court of Kenya
8 July 2016
JRJames Rika
7,961 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~32 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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Dr. Okemwa, Director of the Kenya Marine & Fisheries Research Institute, was suspended on 1st December 1999 following an anonymous corruption complaint, without being heard. He was charged with stealing by a public servant in a criminal trial lasting 13 years, ending in acquittal on all counts in August 2012. The Respondent purported to summarily dismiss him by a letter dated 20th June 2002, routed through advocates who denied having his instructions; the Claimant only learnt of the dismissal in September 2012. The Respondent did not participate in the hearing. The Court declined the preliminary objection on limitation, holding time ran from the Claimant's discovery of the termination in September 2012. It held the Employment Act 2007 inapplicable to a 2002 dismissal, governing the dispute instead by the pre-2007 Employment Act, the Service Commissions Act, PSC Regulations and the Respondent's Terms and Conditions of Service, which already embedded natural justice. The suspension and summary dismissal were declared unfair and unlawful; the Claimant was never heard, was surcharged over matters subject to the criminal trial, and was ignored after acquittal, conduct amounting to misfeasance in public office. Re-engagement, lifting of suspension, pension, leave, house allowance and 12 months' salary claims were refused for lack of evidence or appropriateness. The Court awarded salary arrears of Kshs. 33,455,592 and coalesced general damages of Kshs. 20 million, totalling Kshs. 53,455,592, with costs and interest at 14% p.a.

Key legal issues

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01

Limitation of actions

Holding

The preliminary objection on time-bar was declined; the Claim filed on 28th June 2013 was in time because time ran from discovery of termination in September 2012 and negotiations were ongoing

Reasoning

There was no evidence the Claimant received the 2002 termination letter, which was routed through advocates who denied instructions. The Claimant learnt of the termination on 22nd September 2012 when advised by the Permanent Secretary. The Permanent Secretary's letter of 30th April 2013 acknowledged the dispute was still active and negotiations unconcluded, making it unrealistic to expect earlier filing.

p. 6
02

Applicable substantive law

Holding

The Employment Act 2007 does not apply; the dispute is governed by the pre-2007 Employment Act Cap 226, the Service Commissions Act Cap 185, the Public Service Commission Regulations and the Respondent's Terms and Conditions of Service

Reasoning

The suspension, investigations, surcharge and summary dismissal all occurred before the Employment Act 2007 came into force. Subsequent discovery of the dismissal in 2012 is useful only to defeat the limitation objection, not to import the 2007 Act. Substantive and procedural justice must instead be sourced from the contract, service regulations and natural justice principles.

p. 6
03

Fairness of suspension and summary dismissal

Holding

Suspension and summary dismissal were unfair and unlawful, violating natural justice, the contract, service regulations, and constituting misfeasance in public office

Reasoning

Suspension was based on an anonymous letter; the Claimant was never asked to respond, never availed a statement of offence, and never heard at any forum. Board meetings deliberating his fate occurred in his absence. He was suspended without pay for the duration of a 13-year criminal trial, surcharged over a sum that was subject of that trial, and ignored after acquittal. Multiple adverse actions were not fair treatment.

p. 9
04

Damages for injured feelings and diminished employability

Holding

Modern employment law no longer confines recovery to Addis; psychiatric injury and lost employability are compensable, and a coalesced general damages award of Kshs. 20 million was granted

Reasoning

Following Johnston v Unisys and Spring v Guardian Assurance, the employment contract is relational and employer duties extend to psychological welfare. The Claimant's documented international accolades and lost appointments showed real diminution of employability. Rather than assess each violation separately, the Court granted one coalesced award reflecting proportionality.

p. 12

Legal principles established

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  • Receipt of a notice of termination or letter of summary dismissal by the Employee must always be shown by the Employer; without evidence of receipt, terminal rights and obligations cannot be assigned
  • Time in an action for unfair or unlawful termination runs from the date the Employee learnt of the termination, not the date of the termination letter
  • Before the Employment Act 2007, public service employment law under the Service Commissions Act and Regulations already embraced principles of natural justice and fair administrative action in discipline
  • The tort of misfeasance in public office lies where a public body knowingly or recklessly abuses public power to harm a public officer

Court orders

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  1. 1.It is declared the Claimant's summary dismissal was unfair and unlawful
  2. 2.The Respondent shall pay the Claimant Kshs. 33,455,592 in salary arrears
  3. 3.The Respondent shall pay the Claimant Kshs. 20 million in damages for unfair and unlawful termination, diminished employability and related violations
  4. 4.Total award of Kshs. 53,455,592 in arrears of salary and compensatory damages
  5. 5.Costs to the Claimant
  6. 6.Interest at 14% p.a. computed from the date of delivery of the Award

Authorities

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Legislation

  • Industrial Court Procedure Rules 2010Rule 27(1)(a)
  • Limitation of Actions ActCap 22
  • Employment Act 2007Sections 41, 43, 44, 45, 90
  • Employment ActCap 226
  • Service Commissions ActCap 185
  • Public Service Commission Regulationsnot stated
  • State Corporations ActSection 5(3), Cap 446
  • Trade Disputes ActSection 15, Cap 234

Cases cited (13)

  • Mary Chemweno v. Kenya Pipeline Limited
    citation not given
  • Joseph Sitati Nato v. Kenya Ports Authority
    [2010] e-KLR
  • Kenya Revenue Authority v. Menginya Salim Murgani
    [2010] e-KLR
  • Addis v. Gramophone Co.
    [1909] AC 488
  • Major Wilfred Kyallo Kangulyu v. Tetrapak Limited
    [2014] e-KLR
  • Kenya Ports Authority v. Festus Kipkorir Kiprotich
    [2015] e-KLR
  • John Benson Githinji v. The Attorney-General & 4 others
    [2014] e-KLR
  • Geoffrey Muguna Mburugu v. The Attorney-General
    Civil Case Number 3472 of 1994
  • Lt. Col. Benjamin Mwema v. the Attorney-General
    Civil Case Number 2230 of 2001
  • Maria Kagai Ligaga v. Coca Cola East Africa Limited
    Industrial Cause Number 611 [N] of 2009
  • Naqvi Syed Omar v. Paramount Bank Limited & the Attorney-General
    [2015] e-KLR
  • Johnston v. Unisys limited
    [2001] UKHL
  • Spring v. Guardian Assurance Plc
    [1995] 2 AC 296, 335
Jurisdiction invoked
Jurisdiction of the Industrial Court under the Industrial Court Procedure Rules 2010, Rule 27(1)(a), over a dispute of unfair and unlawful termination

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Ezekiel Nyangoya Okemwa v Kenya Marine & Fisheries Research Institute [2016] KEELRC 971 (KLR)", Case Analysis (2016). Industrial Cause Number 186 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/971/eng@2016-07-08

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