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ELRCDismissedPetition No 12 of 2017· [2018] KEELRC 1433 (KLR)

Michael Akoko Mbero v Kenya Revenue Authority [2018] KEELRC 1433 (KLR)

Employment and Labour Relations Court
18 July 2018
MOMAUREEN ONYANGO
6,497 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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The petitioner, formerly an Assistant Revenue Officer at the Kenya Revenue Authority, was arrested in May 2007 by Kenya Anti-Corruption Commission officers and charged with corruption offences. He was suspended, internally investigated, subjected to a disciplinary hearing, and retired in the authority's interest by letter dated 17th July 2009 after the Disciplinary Committee found his explanation for monies found on him unconvincing. After his discharge under section 210 of the Criminal Procedure Code in July 2010, he sought reinstatement and later a review, both unsuccessful. He filed a constitutional petition on 24th February 2017 alleging violation of Articles 41(1), 47(1), 25(c) and 50(1), seeking declarations, reinstatement or, in the alternative, terminal dues and damages. The respondent opposed, arguing the petition raised no constitutional issues, that the 2010 Constitution does not apply retrospectively, and that the claim was statute barred under section 90 of the Employment Act. The court framed six issues and held: no constitutional violation was proved, since Articles 25(c), 47(1) and 50(1) apply to criminal trials rather than internal disciplinary processes; the 2010 Constitution is not retrospective and does not apply to a 2009 retirement; the disciplinary process did not amount to double jeopardy, being independent of the criminal proceedings; and the claim, filed seven years and seven months after the cause of action, was statute barred, the petition form not curing the limitation defect. The petition was dismissed with no orders for costs.

Key legal issues

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01

Whether the petition raised constitutional issues

Holding

No constitutional violation was proved; Articles 25(c), 47(1) and 50(1) apply to criminal trials, not internal disciplinary proceedings, and no unfair labour practice was established

Reasoning

The court noted the KRA Code of Conduct governing the disciplinary process was never availed to the court, so compliance could not be assessed. Articles 25(c) and 50(1) relate to criminal trials in a court or tribunal and could not be violated by a private internal disciplinary process. Article 41(1) on fair labour practices was not supported by particulars showing unlawfulness or discrimination.

p. 7
02

Whether the Constitution 2010 applies

Holding

No - the retirement occurred on 17th July 2009, before promulgation of the 2010 Constitution, and the Constitution is not retrospective

Reasoning

The alleged violations were all anchored in the 2010 Constitution, but the cause of action arose under the repealed constitution. Relying on Duncan Otieno Waga v Attorney General, the court held that Articles 263 and 264 prevent retrospective application except by express provision, so violations said to arise under the 2010 Constitution could not be litigated.

p. 8
03

Whether the claim was statute barred

Holding

Yes - section 90 of the Employment Act imposes a three-year limitation period; the petition was filed over seven years after the retirement

Reasoning

The cause of action arose on 17th July 2009 when the petitioner was retired. The petition was filed on 24th February 2017, seven years and seven months later. The petitioner did not controvert the limitation objection in submissions, so the averments stood uncontroverted. Framing the claim as a constitutional petition does not defeat limitation.

p. 9
04

Whether the disciplinary process amounted to double jeopardy

Holding

No - the disciplinary process was independent of the criminal proceedings, concluded before the acquittal, and the charges and evidence differed

Reasoning

The suspension was under the KRA Code of Conduct, not section 62(1) of the Anti-Corruption and Economic Crimes Act. The disciplinary process concluded and action was taken before the criminal case ended, so the acquittal could not found a double jeopardy claim. The charges in the disciplinary process were not similar to the criminal charges and the evidence differed.

p. 8

Legal principles established

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  • A person alleging violation of a constitutional right must demonstrate the right violated and the nature and extent of the violation with reasonable precision
  • The Constitution of Kenya 2010 is not retrospective and cannot apply to conduct predating its promulgation
  • Internal disciplinary proceedings are independent of criminal proceedings and an acquittal does not preclude disciplinary action; there is no double jeopardy where the two processes are distinct
  • Employment claims remain subject to limitation under section 90 of the Employment Act notwithstanding that they are framed as constitutional petitions

Court orders

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  1. 1.The petition is dismissed
  2. 2.No orders for costs (each party to bear own costs)

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22(1), 23(3), 25(c), 41(1), 47(1), 50(1), 50(2)(a), 263, 264
  • Anti-Corruption and Economic Crimes Act, No. 3 of 2003Sections 39(3)(a), 39(3)(b), 48(1), 62(1)
  • Criminal Procedure CodeSection 210
  • Employment Act, 2007Sections 5(7)(c), 42, 43, 45(5), 46, 90
  • Limitation of Actions ActSection 4(1)

Cases cited (13)

  • MATHEW KIPCHUMBA KOSKEI -V- BARINGO TEACHERS SACCO
    [2013] eKLR
  • SERGEANT JOSHUA MUINDI MAINGI -V- NATIONAL POLICE SERVICE COMMISSION & 2 OTHERS
    [2015] eKLR
  • DISHON KAMAU MUIRURI -V- KENYA REVENUE AUTHORITY
    [2015] eKLR
  • FRANCIS JAMES NDEGWA -V- TETU DAIRY CO-OPERATIVE SOCIETY LIMITED
    [2016] eKLR
  • HARRISON -V- ATTORNEY GENERAL OF TRINIDAD AND TOBAGO
    [1980] AC 265
  • BENJAMIN WACHIRA NDIITHI -V- PUBLIC SERVICE COMMISSION & ANOTHER
    [2014] eKLR
  • JAMES MUKUHA GICHANE -V- NATIONAL HOSPITAL INSURANCE FUND & 3 OTHERS
    [2017] eKLR
  • JUSTICE AMRAPHAEL BHOGOLI MSAGHA -V- THE CHIEF JUSTICE OF THE REPUBLIC OF KENYA AND 7 OTHERS
    [2006] EKLR
  • CYPRIAN KUBAI -V- STANLEY KANYONGA MWENDA
    Nairobi High Court Misc. Application No. 617 of 2002
  • ANARITA KARIMI NIERU -V- REPUBLIC (NO. 1)
    (1979) K.L.R 154
  • MARY CHEMWENO KIPTUI -V- KENYA PIPELINE COMPANY LIMITED
    [2014] eKLR
  • REPUBLIC -V- SECRETARY, TEACHERS SERVICE COMMISSION & ANOTHER EX-PARTE SAMUEL MULAMULA LIPEVA
  • DUNCAN OTIENO WAGA -V- ATTORNEY GENERAL
Jurisdiction invoked
Articles 22(1) and 23(3) of the Constitution of Kenya 2010 (petition alleging violation of fundamental rights and freedoms)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Michael Akoko Mbero v Kenya Revenue Authority [2018] KEELRC 1433 (KLR)", Case Analysis (2018). Petition No 12 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1433/eng@2018-07-18

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