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ELRCPartially AllowedConsolidated Memoranda of Claim dated 14th August 2015 (filed 17th August 2015)· [2018] KEELRC 2267 (KLR)

Hilton Waweru Kariuki & another v Attorney General [2018] KEELRC 2267 (KLR)

Employment and Labour Relations Court
9 March 2018
2,649 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that two civil servants were unfairly dismissed over birth certificate irregularities, awarding them compensation because blame was never properly established.

What this practically means

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Executive summary

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This consolidated unfair dismissal claim was brought by Hilton Waweru Kariuki and Josphat Maina Gacheru, both senior officers in the Civil Registration Department, against the Hon Attorney General on behalf of the Public Service Commission and the Ministry of Interior and Coordination of National Government. Both Claimants were interdicted in May 2013 and later dismissed for gross misconduct on allegations that they had irregularly facilitated the issuance of Kenyan birth certificates to Nigerian nationals, which in turn enabled the foreigners to obtain Kenyan passports. Both claimed they had scrutinised and relied on genuine supporting documents, including national identity cards and confirmations from the National Registration Bureau and a Chief's letter. The court framed two issues: whether the dismissals were lawful and fair, and whether the remedies sought were payable. Relying on the official investigation report, which expressly found both Claimants not culpable and located the problem at the National Registration Bureau, the court held that causation was never established and that there was no valid reason for the dismissal. It further found that, apart from correspondence, the Claimants were not given a hearing as required under Section 41 of the Employment Act, rendering the dismissals substantively and procedurally unfair. The court awarded each Claimant twelve months' salary in compensation, one month's notice pay, full pension dues, and unpaid salary from interdiction to dismissal, with interest, and granted the Claimants costs.

Key legal issues

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01

Whether the dismissal of the Claimants was substantively justified

Holding

The dismissal was without valid reason; the investigation report exonerated both Claimants and placed culpability on the National Registration Bureau, so causation was never established.

Reasoning

The court examined the investigation report which found that both Claimants relied on genuine documents including identity cards and supporting letters or notes from the National Registration Bureau. The report concluded the Bureau was at the epicentre of the problem. The Respondent's own witness could not place culpability on the Claimants. The court held that mishaps do not automatically fix blame on the officers involved and found no reason at all for the disciplinary action.

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02

Whether the dismissal was procedurally fair

Holding

The dismissal was procedurally unfair as the Claimants were not afforded a hearing as required under Section 41 of the Employment Act.

Reasoning

Beyond exchanging correspondence after interdiction, the Claimants were never given an opportunity to be heard as Section 41 of the Employment Act demands. The court relied on its prior decisions that termination must be supported by valid reason and prior opportunity to defend oneself. The absence of a hearing, combined with the lack of substantive justification, rendered the dismissals both substantively and procedurally unfair, entitling the Claimants to compensation.

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03

Whether the Claimants were entitled to the remedies sought

Holding

Each Claimant was awarded 12 months' salary in compensation, one month's notice pay, full pension dues and unpaid salary from interdiction to dismissal, with interest and costs.

Reasoning

In assessing compensation, the court took into account the Claimants' length of service (1977 and 1982 respectively) and the Respondent's irregular conduct in effecting the dismissals. Judgment was entered with specific figures for compensation and notice pay, with pension and unpaid salary to be tabulated and paid within 30 days, attracting interest at court rates, plus costs of the case.

p. 6

Legal principles established

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  • Termination of employment requires both a valid reason and an opportunity for the employee to be heard beforehand
  • A disciplinary dismissal must rest on established causation; things going wrong does not automatically fix blame on the employee
  • Apart from exchange of correspondence, failure to afford an employee a hearing violates Section 41 of the Employment Act, rendering dismissal procedurally unfair

Court orders

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  1. 1.12 months' salary in compensation to each Claimant (1st Claimant Kshs. 499,080; 2nd Claimant Kshs. 713,952)
  2. 2.1 month's salary in lieu of notice to each Claimant (1st Claimant Kshs. 41,590; 2nd Claimant Kshs. 59,496)
  3. 3.Full pension benefits to be tabulated and paid within 30 days from delivery of the judgment
  4. 4.Unpaid salary from the date of interdiction until the dismissal date to be tabulated and paid within 30 days from delivery of the judgment
  5. 5.Interest at court rates on compensation and notice pay from the date of delivery of judgment until payment in full; interest on pension benefits and unpaid salary 30 days from delivery of judgment until payment in full
  6. 6.Claimants awarded costs of the case

Authorities

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Legislation

  • Employment ActSection 51(3)
  • Employment ActSection 41

Cases cited (2)

  • Shankar Saklani v DHL Global Forwarding (K) Limited
    [2012] eKLR
  • Walter Ogalo Anuro v Teachers Service Commission
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (claim for unlawful and unfair dismissal; remedies under the Employment Act, including Sections 41 and 51(3))

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Hilton Waweru Kariuki & another v Attorney General [2018] KEELRC 2267 (KLR)", Case Analysis (2018). Consolidated Memoranda of Claim dated 14th August 2015 (filed 17th August 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2267/eng@2018-03-09

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