Edward C. Asitiba v Attorney General [2018] KEELRC 1244 (KLR)
The bottom line
#Kenya's Employment Court ruled the Judicial Service Commission unfairly retired a 42-year-old officer and awarded him Kshs. 6 million, plus interest and costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was an employee of the Judicial Service Commission
The Claimant, though seconded from the Treasury, was an employee of the Judicial Service Commission which had overall supervisory responsibility over him.
The court traced the Claimant's appointment history: secondment to the Judiciary in 1994, letters of promotion issued by the Registrar High Court on behalf of the Judicial Service Commission, promotion to Chief Supplies Officer by the Registrar/Secretary to the JSC, and appointment to additional responsibilities. These documents demonstrated that the JSC exercised supervisory authority, establishing the employment relationship.
Whether the retirement in public interest at age 42 was lawful and fair
The retirement was wrongful and unfair: the JSC deviated from the Treasury directive (which required officers below 50 to be interviewed for re-deployment), proved none of the alleged misconduct, and the Claimant's un-rebutted evidence showed a good service record.
The Claimant's unchallenged oral and documentary evidence showed promotions and commendations up to the date of retirement. The Respondent called no evidence. The JSC retired the Claimant before the closing date for fresh applications under the Treasury directive, and the stated reasons (complaints, poor relations, suspicion of corruption) were generalities never proved. Applying Marete and Mulobi, an authorised officer must act objectively and quasi-judicially when retiring in public interest.
What remedy the Claimant is entitled to
Reinstatement refused; global general damages of Kshs. 6,000,000 awarded, guided by Marete and GMV vs Bank of Africa, applying legitimate expectation and the principle of fair go all round.
Fifteen years had elapsed, so reinstatement or re-engagement was inappropriate. The cause of action predated the Employment Act 2007, so statutory compensation under Section 49 did not apply; equitable/common law remedies applied. The court relied on Murgani against speculative prospective earnings and awarded coalesced global damages by analogy to Marete and GMV, taking account of the Claimant's diminished pension and victimization.
Legal principles established
#- An employer justifying premature termination on public interest grounds must show objective, demonstrable and legitimate grounds and adherence to fair termination procedure.
- Once a claimant adduces sufficient evidence, the onus shifts to the employer to rebut; failure to rebut means the claimant's case is proved on a balance of probabilities.
Court orders
#- 1.General damages Kshs. 6,000,000 for unlawful and unfair termination of employment.
- 2.The award is payable with interest at court rates from date of judgment till payment in full.
- 3.Respondent to pay costs of the suit.
- Jurisdiction invoked
- First-instance jurisdiction of the Industrial Court over employment and labour relations disputes (cause arising pre-Employment Act 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Edward C. Asitiba v Attorney General [2018] KEELRC 1244 (KLR)", Case Analysis (2018). Cause No 762 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1244/eng@2018-08-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.