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ELRCPartially AllowedHCCC 1512 of 2002 (as consolidated with HCCC 8 of 2003)· [2019] KEELRC 238 (KLR)

Ishmael Omula Egala & 7 others v Attorney General [2019] KEELRC 238 (KLR)

Employment and Labour Relations Court (formerly High Court) at Nairobi
29 November 2019
MOMaureen Onyango
2,845 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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Eight wrongfully retrenched Kenyan meteorological officers won compensation of three months' salary each, plus Kshs.500,000 each, because the Public Service Commission ignored court orders for seven years.

What this practically means

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Executive summary

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Eight former officers of the Kenya Meteorological Department sued the Attorney General (for the Public Service Commission) after their retrenchment on or after 30th September 2000, claiming it was procedurally and constitutionally flawed. Judgment was earlier entered against the Respondent by Aluoch J.'s preliminary decree of 16th June 2003, declaring the retrenchment unlawful and wrongful, the Permanent Secretary's conduct fraudulent and a malicious procurement of breach of contract, and the deployment of 32 trainee officers by the Directorate of Personnel inconsistent with the constitutional role of the PSC; the Claimants were ordered reinstated. Attempts to set aside those orders failed, and Mwera J. directed reinstatement with effect from 1st October 2010. The Claimants were reinstated and paid arrears, leaving only the assessment of damages. The Respondent filed no defence. Onyango J. held entitlement to damages was settled, and awarded each Claimant compensation equivalent to 3 months' gross salary under the repealed Employment Act (following the principle that general damages for breach of contract are not awardable and that three months was reasonable notice), plus exemplary damages of Kshs.500,000.00 each for the PSC's failure to reinstate them for over 7 years. Totals per Claimant ranged from Kshs.546,090.50 to Kshs.579,845.00. Costs with interest were awarded to the Claimants. The claim partially succeeded: 12 months' compensation was refused, and no contempt findings were made.

Key legal issues

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01

Whether entitlement to damages remained open for determination

Holding

Entitlement was settled by the preliminary decree of Aluoch J. and Mwera J.'s orders, which were never set aside; only quantum remained

Reasoning

The Court held that liability had been determined in the interlocutory decree of 16th June 2003 and confirmed in 2010, neither of which was set aside or reviewed. The Respondent filed no defence denying liability, and the reinstatement and payment of arrears amounted to acceptance of the court's decision. Only the assessment of damages remained.

p. 3
02

The measure of compensation for the unlawful retrenchment

Holding

Compensation equivalent to 3 months' gross salary, not 12 months, as the repealed Employment Act applied

Reasoning

The applicable law was the repealed Employment Act in force at retrenchment, under which general damages for breach of contract are not awardable; the measure is the notice period. Following Kenya Bus Services v Okutoi, three months was a reasonable period for the Claimants to be sensitized and prepared for retrenchment had proper procedure been followed.

p. 4
03

Whether exemplary damages were payable

Holding

Yes; Kshs.500,000.00 to each Claimant for the PSC's failure to honour the reinstatement order for over 7 years

Reasoning

The Permanent Secretary's actions had been declared null, void and unconstitutional, warranting exemplary damages in the Court's discretion. The violations cost the Claimants their livelihood for about 7 years while pursuing the case, because the PSC failed to honour Aluoch J.'s reinstatement order. Gitobu Imanyara was applied, balancing the parties' interests.

p. 4

Legal principles established

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  • General damages are not awardable for breach of contract; where a contract of service contains a termination clause, the measure of compensation is the period specified in the termination clause
  • Where no evidence of the applicable notice period exists, three months' notice is a reasonable measure of compensation for wrongful termination
  • Award of exemplary damages is discretionary and appropriate in instances of constitutional violations, though a declaration may sometimes suffice

Court orders

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  1. 1.Compensation to each Claimant equivalent to 3 months' gross salary at the time of termination (e.g. Kshs.65,719.50 for the 1st Claimant; totals ranging from Kshs.546,090.50 to Kshs.579,845.00 per Claimant including exemplary damages)
  2. 2.Exemplary damages of Kshs.500,000.00 to each of the 8 Claimants
  3. 3.Costs of the suit awarded to the Claimants plus interest at court rates from the date of judgment until payment in full

Authorities

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Legislation

  • Employment Act (Repealed)not specified
  • Public Service Commission Regulationsregulation 20

Cases cited (10)

  • Unilever Kenya Limited vs. John Kememia Gitau
  • Kenya Revenue Authority vs. Menginya Salim Murgani
    [2010] eKLR
  • Kenya Bus Services Limited vs. Meleksadik Okutoi
    Nairobi Court of Appeal No. 145 of 1998
  • Rookes vs. Barnard
    [1964] 1 ALL ER 367
  • Directline Assurance Company Limited vs. Jeremiah Wachira Ichaura
    [2016] eKLR
  • Securicor Courier (K) Ltd v Benson David Onyango and Ann
    Civil Appeal No. 323 of 2002 (UR)
  • Joseph Ileli Kikumbi v Central Bank of Kenya
  • Central Bank of Kenya vs Nkabu
  • Benedict Munene Kariuki and 14 Others vs. The Attorney General
    [2011] eKLR
  • Gitobu Imanyara and 2 others –Vs- Attorney General
    [2016] eKLR
Jurisdiction invoked
Original civil suit for declaratory relief and damages for wrongful termination of public service employment; assessment of damages directed by prior interlocutory decrees of the High Court

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, "Ishmael Omula Egala & 7 others v Attorney General [2019] KEELRC 238 (KLR)", Case Analysis (2019). HCCC 1512 of 2002 (as consolidated with HCCC 8 of 2003). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/238/eng@2019-11-29

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