Domitila Wanzila Muvanya v Insurance Regulatory Authority & 6 others [2016] KEELRC 1860 (KLR)
The bottom line
#Kenya's Employment Court ruled the Insurance Regulatory Authority unfairly dismissed its procurement officer and awarded her over Kshs 5.9 million because it skipped mandatory disciplinary steps.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court has jurisdiction
- 2.Whether there is misjoinder of parties
- 3.Whether there are constitutional violations
- 4.Whether the Petitioner is entitled to the remedies sought
Key legal issues
#Jurisdiction of the ELRC over employment-related constitutional petitions
The Court has jurisdiction under article 162(2)(b) of the Constitution and section 4 of the Employment and Labour Relations Court Act to determine constitutional violations arising from employment relationships.
Section 12 of the Employment and Labour Relations Court Act defines the relationships within the Court's remit. Where an alleged fundamental rights violation arises in an employment and labour relations context, the ELRC is the proper forum. Separating the constitutional claim from the employment dispute would defeat the ends of justice, as held in USIU v AG.
Misjoinder of individual officers of the 1st Respondent
The individual respondents were properly enjoined since the 2013 Petition Rules allow joining any person alleged to have violated a right, and substantive justice under article 159 prevails over technicalities such as missing letters of authority.
The rules permit enjoining any person alleged to have denied or violated a right. The allegations against each respondent were clearly set out and no prejudice would be suffered. The absence of formal authority for the 2nd Respondent to reply for the others does not relieve the officers of their constitutional duties; the Court must pursue substantive justice under article 159 and section 20 of the ELRC Act.
Whether the recruitment of the interested party demoted or discriminated against the petitioner
No demotion or discrimination: the petitioner was appointed and remained senior procurement officer; applying for the new head of procurement post and losing did not change her terms.
The record showed the petitioner was offered and confirmed as senior procurement officer, and no letter altered her terms. Applying for the newly created head of procurement position was a voluntary choice that did not displace her appointment. Claims of salary differential, discrimination and demotion had no basis since her remuneration and conditions remained unchanged until dismissal.
Whether the summary dismissal complied with the HR policy and sections 41 and 45 of the Employment Act
The dismissal was procedurally unfair: the charges in the memo of 22 November 2012 were never served on the petitioner to allow a 48-hour response, and the 26 November 2012 meeting did not satisfy the mandatory hearing requirements of section 41.
The respondent's own HR policy required a statement of charges be served on the employee for response within 48 hours, followed by review by the supervisor and a disciplinary committee. No evidence showed the memo was served. Further, section 41(1) requires the employee be heard in the presence of another employee or union representative of her choice; the meeting with the 2nd Respondent and Mr Kuloba failed this. The failure amounted to procedural unfairness under section 45.
Constitutionality of section 35(4)(b) of the Employment Act
Section 35(4)(b) is not inconsistent with the Constitution; it must be interpreted purposively and in whole, and termination without notice must still be for a lawful cause under sections 43 and 45.
The court adopted a purposive interpretation per article 259 and the approach in Thomas De La Rue v Omulama. Section 35(4)(b) benefits both employer and employee; the exception allowing termination without notice is conditioned on a lawful cause, the content of which is found in section 43, failing which the termination is unfair under section 45. The section cannot be read in isolation from the rest of the Act.
Reinstatement as a remedy
Reinstatement was refused because the petitioner never held the head of procurement post, the statutory 3-year window under section 12 of the ELRC Act had passed, and returning her to a hostile workplace would set her up for failure.
Reinstatement is discretionary and granted only in exceptional cases. Although the delay past 3 years was not within the petitioner's control given court schedules, the environment created by the respondents' officers made reinstatement impractical. The court instead awarded damages for the violations and compensation for unfair termination.
Legal principles established
#- The Employment and Labour Relations Court has jurisdiction over alleged constitutional violations arising within employment and labour relations relationships
- Before summary dismissal under section 44(3) and (4) of the Employment Act, the mandatory hearing requirements of section 41 must be complied with regardless of how gross the misconduct alleged
- An employer's HR policy cannot override the mandatory hearing requirements of section 41 of the Employment Act
- The right to fair administrative action is a constitutional issue and not merely a judicial review issue
- Applying for a newly advertised position does not alter or diminish an employee's existing position and terms of employment
- A petitioner may enjoin as respondents public officers alleged to have violated their rights under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
Court orders
#- 1.Declared that the petitioner's constitutional rights were violated by the respondent
- 2.Declared that the petitioner was unfairly terminated from employment with the respondent
- 3.Awarded damages of Kshs. 1,500,000.00
- 4.Awarded compensation of Kshs. 3,564,000.00 (12 months' gross salary)
- 5.Awarded notice pay of Kshs. 891,000.00
- 6.Awarded costs of the suit to the petitioner, to be met jointly and severally by the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and section 4 of the Employment and Labour Relations Court Act
Relief refused
#Reinstatement as Head of Procurement Unit
The petitioner never held the position of Head of Procurement; she remained senior procurement officer, and reinstatement after 3 years from dismissal would be impractical in a hostile workplace
Declaration that section 35(4)(b) of the Employment Act is unconstitutional
The section must be read in whole and in context; it operates for the benefit of both parties and requires termination without notice to be for a lawful cause
Salary review to Kshs. 402,000.00 and payment of salary differential between the petitioner and the interested party
The petitioner remained senior procurement officer with unchanged terms; claims of demotion and discrimination had no basis
Salaries up to retirement age of 60 years (Kshs. 42,008,000.00)
Awarding notice pay and retirement-ago salaries would amount to double payment; compensation under section 49 was already addressed
Declaration that the 2nd, 3rd and 4th Respondents be found unfit to hold public office
No such order was made in the final disposition
Costs
Costs shall follow cause. The Respondents shall jointly and severally meet the costs of the petitioner.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In reference to section 41 of the Employment Act, however gross the nature of misconduct an employee is alleged to have committed, the mandatory provisions of law must be adhered to.
Where the HR policy of the 1st Respondent omits this procedure, such is inconsistent with the mandatory provisions of the law and the law ranks in priority.
It is therefore clear that the right to fair administrative action is nolonger just a judicial review issue but a constitutional issue as well.
I declare the petitioners' constitutional right were violated by the respondent;
I declare the Petitioner was unfairly terminated from employment with the respondent;
Damages awarded at kshs.1, 500,000.00;
Compensation awarded at kshs.3, 564,000.00;
Notice pay at kshs.891, 000.00; and
Costs of the suit to the petitioner.
to take her back to the same environment would be to set her up for failure in a hostile work place.
Issues in the judgment
#Typographical errors in the judgment, e.g. 'kshs.297.00' for the petitioner's last salary where the record elsewhere states Kshs. 297,000.00, and inconsistent dates such as confirmation on 19th August 2011 versus 24th August 2011
Internal inconsistency in the description of the dismissal meetings on 26th November 2012 noted by the court itself
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Domitila Wanzila Muvanya v Insurance Regulatory Authority & 6 others [2016] KEELRC 1860 (KLR)", Case Analysis (2016). Petition No. 48 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1860/eng@2016-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.