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ELRCPartially AllowedCause No. 97 of 2015· [2018] KEELRC 1514 (KLR)

Simon N Mwaniki & 25 others v Permanent Secretary Ministry of Defence & 3 others [2018] KEELRC 1514 (KLR)

Employment and Labour Relations Court of Kenya
18 June 2018
HWHellen S. Wasilwa
4,376 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 that civil servants accused of forging certificates must get an oral hearing before discipline, and awarded 26 Ministry of Defence workers damages.

What this practically means

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Executive summary

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Twenty-six civilian employees of the Ministry of Defence petitioned the Employment and Labour Relations Court claiming that their interdiction, demotion, dismissal and salary deductions following a 2013 certificate verification exercise violated their constitutional rights. They contended they were condemned unheard, placed on half pay without legal basis, demoted without consultation, and dismissed or subjected to salary deductions without due process, contrary to Articles 27, 28, 41, 47 and 50 of the Constitution. The Respondents maintained that the certificates were found forged by the National Industrial Training Authority, that the Petitioners were accorded fair administrative action in line with service regulations, and that the Petitioners failed to exhaust their right of appeal to the Public Service Commission. The court applied the Anarita Karimi Njeru standard and found the Petitioners did not establish discrimination. However, it held that the disciplinary process was flawed because an oral hearing was necessary where employees stood accused of submitting forged certificates, and the Public Service Commission manual procedures did not meet constitutional standards of fair administrative action. Interdiction during investigation was held proper, but on lifting of the interdiction the affected Petitioners were entitled to all withheld salaries. The court declared that Articles 41, 47 and 50 were infringed, awarded each Petitioner Kshs. 500,000 in damages, ordered payment of dues withheld during interdiction (excluding the five dismissed Petitioners), and awarded costs to the Petitioners. Prayers for promotion, reversal of the Kshs. 2,000 deductions and pension backdating were refused for want of evidence.

Key legal issues

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01

Whether the Petitioners were discriminated against under Article 27

Holding

No discrimination established; Petitioners did not show differential treatment compared to another group in similar circumstances

Reasoning

Discrimination envisages treating one group differently or preferentially against another group under similar circumstances. The Petitioners did not identify a comparator group or what they were subjected to as against a different group under similar circumstances. The contention on discrimination therefore failed.

p. 5
02

Whether the disciplinary process infringed Articles 41, 47 and 50

Holding

Yes - the disciplinary process was flawed as an oral hearing was necessary but not accorded

Reasoning

Although the Employment Act does not apply to the armed forces, the Constitution binds all persons and state organs. The Petitioners faced allegations of forged certificates and only responded in writing. An oral hearing would have allowed them to explain the dates, manner and mode of acquiring the certificates and why they believed them authentic. The Human Resource Manual provisions did not meet constitutional standards on fair administrative action.

p. 6
03

Whether interdiction and half pay were lawful

Holding

Interdiction during investigation was proper; withheld salaries were payable once interdiction was lifted

Reasoning

Interdiction as a disciplinary process is allowed in law under the Public Service Commission Manual, which entitles an interdicted officer to half basic salary. The interdiction here was during investigation and was later lifted, entitling the Petitioners to restoration of all withheld salaries, allowances and benefits, except those who were dismissed.

p. 6

Legal principles established

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  • A person alleging contravention of constitutional rights must set out the right infringed and the manner of infringement
  • The necessity of an oral hearing in disciplinary proceedings depends on the subject and nature of the dispute and the circumstances of the case
  • Where an employee stands accused of forging qualifications, an oral hearing is necessary to allow them explain the manner they received the certificates

Court orders

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  1. 1.Declaration that the Petitioners' rights under Articles 41, 47 and 50 of the Constitution were infringed upon
  2. 2.Petitioners to be paid all dues withheld during the interdiction period except Petitioners No. 10, 20, 22, 24 and 25 who were dismissed
  3. 3.Each Petitioner to be paid Kshs. 500,000 as damages for breach of constitutional rights
  4. 4.Costs of the Petition to be borne by the Respondents

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 2, 27, 28, 41, 47, 50, 259(4)(b)
  • Employment Act 2007Sections 3(2), 10(5), 17(g), 41
  • Public Service Commission discipline manualParagraph 4.0(e)

Cases cited (8)

  • Anarita Karimi Njeru vs Republic
    (1976-80) 1 KLR 1272
  • Timon Otieno Mboga vs Kenya Forest Service
    Cause No. 2 of 2014 [2015] eKLR
  • Peterson Ndung'u & 5 others vs Kenya Power and Lighting Company Limited
    Cause Number 1149 of 2011 [2014] eKLR
  • Kenya Posts Authority vs Fadhil Juma Kisuswa
    (2017) eKLR
  • Owaga Vs Trans Ocean (U) Ltd
    (1990) KLR
  • Local Government Board vs Arlidge
    (1915) A.C 120
  • Selvarajan v Race Relations Board
    (1975) I WLR 1682
  • Republic vs Immigration Appeal Tribunal ex-parte Jones
    (1988) I WLR 477
Jurisdiction invoked
Article 162(2) of the Constitution (employment and labour relations jurisdiction)

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, "Simon N Mwaniki & 25 others v Permanent Secretary Ministry of Defence & 3 others [2018] KEELRC 1514 (KLR)", Case Analysis (2018). Cause No. 97 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1514/eng@2018-06-18

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