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ELRCPartially AllowedCause No 794 of 2013· [2018] KEELRC 318 (KLR)

Engineer Mwalimu Kithome Musau v Kenya Water Institute & another [2018] KEELRC 318 (KLR)

Employment and Labour Relations Court
14 December 2018
5,023 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 a director's suspension and firing were unfair because no hearing or specific charges preceded them, awarding him Kshs 6.47 million.

What this practically means

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Executive summary

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The Claimant, Director of the Kenya Water Institute, challenged his suspension (22nd March 2013), commutation to interdiction (8th April 2013) and termination (resolved 13th May 2013, communicated by letter dated 21st August 2014 but backdated to 13th May 2013). He sought declarations of nullity, quashing orders, reinstatement or re-engagement, and monetary awards including the balance of his five-year contract, gratuity, notice pay and compensation. The 1st Respondent maintained that its Governing Council was the sole authority over hiring and firing and that due process was followed; the 2nd Respondent, the Council Chairman, denied personal liability under Section 6(4) of the Kenya Water Institute Act. The Court framed three issues: lawfulness and fairness of termination, proper joinder of the 2nd Respondent, and entitlement to remedies. It held the suspension was a disciplinary action requiring a prior hearing; no specific charges were ever served, the EMU report reached the Chairman only a day before suspension, and no Council resolution sanctioned the suspension - making it unprocedural and unlawful. The termination failed under Sections 41 and 43 of the Employment Act: no valid reason was established, the process was a fishing expedition, and backdating was an unfair labour practice. The Ministry's advice to keep the Claimant in office could not be ignored. The 2nd Respondent, having acted in a lone-ranger mode without good faith, was properly joined and personally liable. The Court awarded 10 months' salary in compensation and 3 months' notice pay, totalling Kshs. 6,474,000 with interest, a certificate of service and costs; gratuity and all other prayers were dismissed.

Key legal issues

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01

Lawfulness and fairness of the suspension and interdiction

Holding

The suspension and interdiction were unprocedural and unlawful because the Claimant was not heard beforehand, the suspension letter gave no reasons and no period, and there was no Governing Council resolution sanctioning the suspension

Reasoning

Suspension is ordinarily a neutral action, but here it withheld salary, making it a disciplinary action requiring a hearing. The letter disclosed no reasons or duration; the EMU report was received only a day before suspension, leaving no time to respond; no Council resolution authorised the suspension; and the Ministry's advice requiring the Claimant to remain in office was procedurally sound and could not be ignored.

p. 6
02

Lawfulness and fairness of the termination

Holding

The termination was unlawful and unfair: no valid reason was established under Section 43, no specific charges were served contrary to Section 41, and backdating by more than a year was illegal

Reasoning

No document from the Governing Council enumerated administrative charges against the Claimant; the Council delegated this duty to the ad hoc committee and EMU. The employee could not prepare a defence without clear charges. Neither the suspension nor the termination letter stated reasons, so the employer failed to establish a valid reason under Section 43. Backdating the termination was an unfair labour practice.

p. 7
03

Whether the 2nd Respondent was properly joined personally

Holding

Yes; the Section 6(4) Kenya Water Institute Act immunity covers only acts done in good faith, and the 2nd Respondent acted alone, ignoring Ministry advice, so he must take personal responsibility

Reasoning

Joiner of public officers acting officially is discouraged, but the statutory protection requires good faith. The 2nd Respondent produced no Council resolution sanctioning the suspension and ignored the Ministry's advice, indicating he acted on his own; the corporate cover was therefore removed and he was properly joined and personally liable.

p. 7
04

Remedies

Holding

10 months' salary in compensation and 3 months' notice pay awarded; gratuity refused as the Claimant did not serve his full term; other prayers dismissed

Reasoning

Compensation was calibrated to the Claimant's length of service and the Respondents' conduct. Notice pay followed the contract. Gratuity depended on completing the term. The certificate of service is a statutory entitlement, and costs follow the event.

p. 7

Legal principles established

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  • Where suspension embodies adverse action such as withholding salary, it is a disciplinary action and the employee is entitled to be heard before suspension
  • An employer must formulate and serve specific charges on an employee before disciplinary action; charges at large amount to a fishing expedition and violate Section 41 of the Employment Act
  • Prolonged suspension or interdiction without explanation is unfair
  • Backdating a termination of employment is tainted with illegality and amounts to an unfair labour practice
  • A public officer who acts in a lone-ranger mode and ignores advice loses statutory immunity protecting acts done in good faith

Court orders

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  1. 1.Judgment entered in favour of the Claimant and against the 1st and 2nd Respondents jointly and severally for 10 months' salary in compensation (Kshs. 4,980,000) and 3 months' salary in lieu of notice (Kshs. 1,494,000), totalling Kshs. 6,474,000
  2. 2.Interest at court rates on the decretal amount from the date of delivery of judgment until payment in full
  3. 3.The 1st Respondent to issue the Claimant with a certificate of service
  4. 4.Costs of the case awarded to the Claimant
  5. 5.All other prayers dismissed

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 44(2)
  • Employment ActSection 45
  • Kenya Water Institute Act No. 11 of 2001Section 6(1)
  • Kenya Water Institute Act No. 11 of 2001Section 6(4)
  • Kenya Water Institute Act No. 11 of 2001Section 8
  • Constitution of Kenya, 2010not specified (referenced in context of transition period)
  • Leadership and Integrity Actnot specified
  • Government Circular Ref No. OP/CAB.2/8Acircular on appointments and dismissals during transition period
  • KEWI Human Resources Policy ManualClause 3.17.3

Cases cited (4)

  • Wilberforce Ojiambo Oundo v Regent Management Limited
    [2013] eKLR
  • Teresia N. Peter v Kitui Teachers Savings and Credit Society Ltd
    [2014] eKLR
  • Rebecca Ann Maina & 2 others v Jomo Kenyatta University of Agriculture and Technology
    [2014] eKLR
  • Paul Masinde Simidi v National Oil Corporation of Kenya & another
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 43, 44(2), 45) and the Kenya Water Institute Act No. 11 of 2001

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, "Engineer Mwalimu Kithome Musau v Kenya Water Institute & another [2018] KEELRC 318 (KLR)", Case Analysis (2018). Cause No 794 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/318/eng@2018-12-14

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