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ELRCPartially Allowed· [2018] KEELRC 864 (KLR)

Shem Ombati Otachi v Attorney General (sued on behalf of the Ministry of Interior and Coordination of National Government) [2018] KEELRC 864 (KLR)

Employment and Labour Relations Court
25 October 2018
MNMathews N. Nduma
821 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is an undefended first-instance employment suit filed on 23rd November 2016 and amended on 1st February 2017. The Claimant, Shem Ombati Otachi, was recruited on 20th December 2013 as area chief for Ikuruma Location, Marani Sub-County, Kisii County at a monthly salary of Kshs.19,323. His services were terminated on 11th August 2015 (effective 27th May 2015) on allegations that he had forged his KCSE certificate used in recruitment. He was subsequently charged in Criminal Case Number 504 of 2016 before the Chief Magistrate's Court at Kibera, but the case was withdrawn under section 87(a) of the Criminal Procedure Code and he was discharged on 28th September 2016. The Respondent was duly served but entered no appearance and filed no defence; State counsel Mr. Que appeared but did not participate. The court directed the Kenya National Examination Council to confirm the Claimant's results, and the Council confirmed he sat the 1992 KCSE at Itibo Boys High School attaining a C+ mean grade, and that his original certificate in its custody had been tampered with. The court found the forgery allegation unproved, that no proper disciplinary proceedings were held, and that the termination violated sections 41, 43 and 45 of the Employment Act, 2007. Judgment was entered for the Claimant: reinstatement to his position or an equivalent one without loss of status or benefits, payment of arrear salary and accrued allowances for the period 20th December 2013 to 11th August 2015, and costs. Interest was not awarded as it was not prayed for, and compliance was ordered within 60 days.

Key legal issues

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01

Whether the Claimant forged his KCSE certificate

Holding

The Claimant did not forge his KCSE qualifications and was properly recruited

Reasoning

The court directed the Kenya National Examination Council to confirm the examination results. The Council confirmed the Claimant registered and sat for the 1992 KCSE examinations at Itibo Boys High School, attaining a mean grade of C+. The Council held his original certificate, which had been tampered with. This uncontroverted evidence disproved the allegation of forgery on which the termination was premised.

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02

Whether the termination was lawful

Holding

The termination was unlawful as no proper disciplinary proceedings were held and there was no lawful basis for it

Reasoning

The Respondent, though served, filed no defence and led no evidence. The court found on a balance of probabilities that no proper disciplinary proceedings preceded the termination, violating sections 41, 43 and 45 of the Employment Act. The Claimant did not contribute to the unlawful termination, and the Respondent gave no evidence hindering reinstatement, making reinstatement under section 12 of the ELRC Act and section 49 of the Employment Act appropriate.

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Legal principles established

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  • Termination of employment without proper disciplinary proceedings and without lawful basis violates sections 41, 43 and 45 of the Employment Act, 2007

Court orders

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  1. 1.The Respondent is directed to reinstate the Claimant to the position of Chief for Ikuruma Location, Ngenyi Division, Marani Sub-County, Kisii County or be re-engaged to any equivalent position without loss of status, salary, allowances and other benefits from the date of the unlawful termination
  2. 2.The Respondent to pay the Claimant arrear salary for the period 20th December, 2013 to 11th August 2015 at the rate of Kshs.19,323 per month and other accrued allowances
  3. 3.The Respondent to pay costs of the suit
  4. 4.No interest awarded as it was not prayed for
  5. 5.Letter dated 26th September, 2017 from Kenya National Examination Council to be given to the Claimant with a certified copy retained in the file
  6. 6.Computation and payment of arrear salary and reinstatement to be done within 60 days of the judgment

Authorities

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Legislation

  • Criminal Procedure Codesection 87(a)
  • Employment Act, 2007sections 41, 43, 45, 49(2) and (4)
  • Employment and Labour Relations Court Act, Cap 234, B Laws of Kenyasection 12
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act, Cap 234, Laws of Kenya as read with sections 49(2) and (4) of the Employment Act, 2007

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, "Shem Ombati Otachi v Attorney General (sued on behalf of the Ministry of Interior and Coordination of National Government) [2018] KEELRC 864 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/864/eng@2018-10-25

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