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ELRCPartially AllowedCause No 152 of 2011· [2018] KEELRC 713 (KLR)

Johnson K. Cheruiyot v Attorney General [2018] KEELRC 713 (KLR)

Employment and Labour Relations Court
19 September 2018
2,739 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled a chief's forced retirement was unlawful because the government never investigated the allegations or gave him a hearing.

What this practically means

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Executive summary

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The Claimant, an Area Chief in Ol Moran Location employed by the Public Service Commission under the Office of the President, was retired in public interest by letter dated 7 June 2006 on allegations of gross misconduct: drunkenness on illicit brew during official hours, demanding bribes from the public, disloyalty to the Government (behaving like a 'Youth-Winger'), and neglect of family. He responded in detail to the show-cause letter, appealed to the Public Service Commission, and later sought review; both were rejected. He sued in 2011, seeking declarations, severance pay, terminal benefits, three months' notice pay, unpaid leave, damages, or reinstatement. The Respondent maintained due process was followed and that no personal hearing was required under the Code of Regulations. The Court found no record justifying the retirement: the bribery allegations had no identifiable complainant, the drunkenness allegation was explained by Kipsigis customary participation in initiation rites, the disloyalty allegation was undefined, and the family allegations were unsupported. No hearing was recorded at the Ministerial Committee, the appeal organ, or the review mechanism. Following prior authority, the Court held the employer failed to act with an open mind in a quasi-judicial manner. Reinstatement was refused as impracticable after 12 years. The Court declared the retirement unlawful and awarded one month's notice pay (Kshs. 11,081) and general damages (Kshs. 132,972), with interest at 14% per annum, and made no order on costs. Severance pay, unspecified terminal benefits, unpaid leave and three months' notice pay were declined for lack of particulars or evidential support.

Key legal issues

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01

Lawfulness and fairness of retirement in public interest

Holding

The retirement was unlawful and unfair: no record justified the decision, the allegations were not established, and no hearing was recorded at any level.

Reasoning

The Claimant gave a detailed written response to the show-cause allegations, but the Court was shown no record of any forum that considered it or established the allegations. Bribery complaints had no specific complainant; drunkenness had a plausible customary explanation; disloyalty was never defined; the family-neglect allegations were unsupported by evidence from his wife or the Children's Office. The Employer did not approach the matter quasi-judicially.

p. 3
02

Right to a personal hearing in the disciplinary process

Holding

Even if the Code of Regulations did not require a personal hearing, the absence of any record of hearing at any level meant the Claimant was never heard.

Reasoning

The Claimant appealed to the Public Service Commission and sought review; the Respondent's witness conceded the Ministerial Committee did not ascertain the supervisor's comments and that there was nothing positive about the Claimant as the matter progressed. The Court held it is difficult to say the Claimant was heard where no organ engaged him personally and no hearing record exists, whether in his presence or absence.

p. 3
03

Reinstatement as a remedy

Holding

Reinstatement was refused as impracticable after 12 years out of service, with the Claimant approaching mandatory retirement age.

Reasoning

The Court adopted the Respondent's submission that practicability - feasibility of re-imposing the employment relationship - governs reinstatement. The Claimant had been out of service since 2006, others had served in the position, and at about 55 years he would be of no public service utility. Monetary remedies were substituted.

p. 3

Legal principles established

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  • An employer retiring an employee in public interest must approach the matter with an open mind and act in a quasi-judicial manner
  • A decision to retire in public interest must be justified by a record of investigation and a recorded hearing; allegations from faceless complainants and rumour do not suffice
  • Taking alcohol only becomes an employment offence if intoxication during working hours renders the employee unwilling or incapable of performing work properly
  • Where multiple organs attend a disciplinary process, none of which engaged the employee personally, the employee cannot be said to have been heard

Court orders

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  1. 1.A declaration that retirement of the Claimant in public interest was unlawful
  2. 2.The Respondent to pay the Claimant 1 month salary in lieu of notice at Kshs. 11,081
  3. 3.The Respondent to pay the Claimant general damages for unlawful termination at Kshs. 132,972
  4. 4.Interest at 14% per annum from the date of Judgment until payment in full
  5. 5.No order on the costs

Authorities

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Legislation

  • Public Service Code of Regulationsnot specified (provisions on disciplinary hearings)

Cases cited (4)

  • Geoffrey Muguna Mburugu v Attorney-General
    High Court Civil Case No. 3472 of 1994
  • Joseph Mulobi v Attorney-General
    Law Monthly No. 15 of March/April 1989
  • D.K. Njagi Marete v Teachers Service Commission
    [2013] e-KLR, Industrial Court Cause No. 379 [N] of 2009
  • Sheikh Abubakr Bwanakai Abdallah v Judicial Service Commission & Another
    [2017] e-KLR
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court over a claim by a public officer against his employer, the State

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, "Johnson K. Cheruiyot v Attorney General [2018] KEELRC 713 (KLR)", Case Analysis (2018). Cause No 152 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/713/eng@2018-10-12

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