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ELRCPartially AllowedELRC Cause (memorandum of claim filed 10.10.2017; exact number not stated in judgment)· [2019] KEELRC 916 (KLR)

Edith Mumbi Kamau v Principal Secretary, Ministry of Interior and Coordination of National Government & another [2019] KEELRC 916 (KLR)

Employment and Labour Relations Court
30 August 2019
2,540 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 a public officer was unfairly dismissed without a hearing, ordering her re-engagement and payment of withheld half salaries.

What this practically means

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Executive summary

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The claimant, formerly an Immigration Officer II employed by the respondents from 19.11.2007, was interdicted by letter dated 06.09.2013 after Kenya Airport Authority security officials alleged she was found in possession of a partially used single journey visa sticker book, a receipt book and 12 cans of Carlsberg beer at JKIA on 01.08.2013. She denied the allegations, was charged in Makadara Criminal Case No. 4130 of 2013 and acquitted on 29.05.2015 under section 210 of the Criminal Procedure Code after the trial court found no prima facie case and no evidence the visa booklet was recovered from her. She was nonetheless dismissed by letter dated 29.04.2016 on account of dishonesty, said to rest on conflicting information in letters dated 01.08.2012 and 18.09.2013. The agreed issues were due process, the genuineness of the dismissal reasons, and remedies. The court found the dismissal reason invalid: the referenced 2012 letter did not exist and predated the alleged misconduct; the claimant was never shown the alleged incriminating items; and the acquittal findings were not shown to have guided the respondents. Procedurally, she was never accorded a hearing as required by section 41 of the Employment Act, and the appeal did not cure that unfairness. The interdiction and dismissal letters were declared illegal, null, void and unconstitutional and set aside. Reinstatement was refused as statute barred three years after dismissal, but re-engagement was ordered in the position of Immigration Officer I, with the intervening period treated as leave without pay for pension continuity. Withheld half salaries were awarded, and the respondents were ordered to pay the claimant's costs of the suit.

Key legal issues

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01

Validity of the reason for dismissal (section 43, Employment Act)

Holding

The reason for dismissal was not valid or genuine. The dismissal relied on a letter dated 01.08.2012 which did not exist and predated the alleged misconduct; the acquittal findings in the criminal case were not shown to have guided the respondents; and the ground relied on was one for which the claimant was never given notice and hearing.

Reasoning

The dismissal letter cited dishonesty based on conflicting information in letters dated 01.08.2012 and 18.09.2013. The 2012 letter did not exist and predated the alleged misconduct of 01.08.2013. The claimant was never shown the receipt book or visa booklet, evidence not rebutted. The criminal acquittal ruling findings were not shown to have been considered. A ground not subject to notice and hearing cannot sustain a valid dismissal under sections 41 and 43.

p. 2
02

Procedural fairness (section 41, Employment Act)

Holding

The procedure was unfair: the claimant was dismissed without a hearing, and the reason in the dismissal letter differed substantially from the allegations in the interdiction letter she had answered in writing.

Reasoning

RW1 testified the written response was relied on without a hearing ('She was never heard'). The dismissal ground (dishonesty by conflicting statements) differed from the interdiction allegations (possession of visa booklet, receipt book, beer). The claimant was entitled to a hearing under section 41 and to be heard by the senior investigating officer under the Public Service Commission Regulations, 2005. The later appeal did not cure this as no fresh investigations or hearing occurred.

p. 3
03

Remedies for unfair dismissal

Holding

Declaration granted; reinstatement refused as statute barred (3 years lapsed); re-engagement ordered as a justified remedy given dismissal without due process contrary to Article 236 of the Constitution; withheld half salaries payable; costs to the claimant.

Reasoning

The cause of action accrued on 29.04.2016 when the dismissal took effect. Reinstatement under section 12 ELRC Act lapses 3 years from the effective dismissal date, which expired about 29.04.2019. Re-engagement remained available, with no established bar and the claimant able and willing to serve. Interdiction-period half salaries were payable because the disciplinary outcome exculpated the claimant on the principal allegations. Costs followed the event.

p. 3

Legal principles established

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  • A termination reason must be shown to be valid and genuine at the time of termination, and a dismissal on a ground for which the employee was not given notice and hearing cannot be said to rest on a valid reason (sections 41 and 43, Employment Act).
  • An appeal process that involves no fresh investigation or hearing does not cure procedural unfairness in the original disciplinary process.
  • An employee exculpated at the end of a disciplinary process has a legitimate expectation to be paid dues for the period of interdiction or suspension; denying such payment is an unfair labour practice (as held in Grace Gacheru Muriithi v Kenya Literature Bureau).

Court orders

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  1. 1.Declaration that the show-cause/interdiction letter dated 06.09.2013 and the dismissal letter dated 29.04.2016 were illegal, irregular, null, void and unconstitutional, and both are set aside
  2. 2.Claimant re-engaged in the service of the respondents at the prevailing remuneration and benefits in the position of Immigration Officer I, effective the date she reports for duty not later than 15.09.2019
  3. 3.Period between 29.04.2016 and date of reporting treated as leave without pay so no break in service for pension purposes
  4. 4.Respondents to pay withheld half salaries from 06.09.2013 to 29.04.2016 by 01.11.2019, failing interest at Court rates from date of filing suit until full payment
  5. 5.Respondents to pay the claimant's costs of the suit

Authorities

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Legislation

  • Employment Act, 2007section 44(3) and (4)(g)
  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 49
  • Public Officer Ethics Act, 2003section 8
  • Constitution of Kenya, 2010Article 236
  • Employment and Labour Relations Court Act, 2011section 12
  • Criminal Procedure Codesection 210
  • Public Service Commission Regulations2005 (hearing by senior investigating officer)

Cases cited (1)

  • Grace Gacheru Muriithi –Versus- Kenya Literature Bureau
    (2012) eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act, 2011, section 12; Employment Act, 2007; Article 236 of the Constitution of Kenya, 2010

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, "Edith Mumbi Kamau v Principal Secretary, Ministry of Interior and Coordination of National Government & another [2019] KEELRC 916 (KLR)", Case Analysis (2019). ELRC Cause (memorandum of claim filed 10.10.2017; exact number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/916/eng@2019-08-30

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