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ELRCPartially AllowedPetition No. 34 of 2016· [2019] KEELRC 1022 (KLR)

Shebby Sakwa & another v Fazul Mohamed & 3 others [2019] KEELRC 1022 (KLR)

Employment and Labour Relations Court of Kenya
7 May 2019
HWHellen S. Wasilwa
4,566 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 an NGO executive lacking required qualifications violated the Constitution, and the fired employee who exposed him gets Kshs. 774,000.

What this practically means

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Executive summary

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The 1st and 2nd Petitioners, an employee of the NGOs Coordination Board and an office-holder in the National Council of NGOs, petitioned alleging that the 1st Respondent, the Board's Executive Director, lacked the academic qualifications required for the post, and that the 2nd and 3rd Respondents failed in due diligence; the 1st Petitioner further claimed her summary dismissal was a reaction to filing the Petition. Issues framed were infringement of rights, unfair termination, and remedies. The court found the 1st Respondent had passed off as a degree holder as required by the advertisement, breaching Article 10 of the Constitution on integrity, and that the 2nd Respondent erred in continuing recruitment without due diligence. Breaches of Articles 73, 75, 153 and 232 were not proved for want of particularised evidence. On termination, the court found that the Executive Director, who had been sued by the 1st Petitioner, sat on the disciplinary process and was also the appellate authority - a judge in his own cause - and minutes of the hearing were not produced; the dismissal was therefore a sham, unfair and unjustified under Section 45(2) of the Employment Act. Because the 1st Respondent's three-year contract expired in November 2017, no orders on his tenure were made as the matter was overtaken by events. The court declared the Article 10 breach, awarded the 1st Petitioner one month's notice pay (Kshs. 86,000) and eight months' compensation (Kshs. 688,000), totalling Kshs. 774,000, with terminal dues to be agreed or assessed, and ordered the 2nd Respondent to pay costs with interest. Judgment delivered by Hellen S. Wasilwa J on 7 May 2019.

Key legal issues

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01

Whether the 1st Respondent's appointment and service as Executive Director violated Articles 10, 73, 75, 153 and 232 of the Constitution

Holding

Breach of Article 10 found; Articles 73, 75, 153 and 232 not proved

Reasoning

The court found the 1st Respondent passed off as a degree holder contrary to the advert's requirement, breaching Article 10 on integrity. The 2nd Respondent erred in failing to conduct due diligence. However, no evidence was led on nepotism or abuse of office under Articles 73 and 75, and no clear breach of Article 153 (Cabinet decisions) or 232 (Public Service) was established.

p. 5
02

Whether the 1st Petitioner's summary dismissal was fair and justified

Holding

Dismissal was unfair and unjustified

Reasoning

The Executive Director who had been sued by the Petitioner sat on the disciplinary process and was also the appeal authority, making him a judge in his own cause. The minutes of the disciplinary hearing were not produced, so the court could not discern who sat on the committee or what evidence was adduced. The Petitioner's reservations about the process were ignored, violating Section 45(2) of the Employment Act.

p. 6
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What remedies are appropriate

Holding

Compensation of Kshs. 774,000 plus costs against the 2nd Respondent; no reinstatement or removal order

Reasoning

Given the expiry of the 1st Respondent's contract in November 2017, orders on his tenure would be futile. The court instead declared the Article 10 breach, awarded notice pay and 8 months' compensation for unfair dismissal, and directed terminal dues to be agreed or assessed.

p. 6

Legal principles established

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  • An employee who sits as a judge in his own cause renders the disciplinary process a sham, unfair and unjustified
  • An employer must prove valid reason and fair procedure under Section 45(2) of the Employment Act for a dismissal to be fair
  • Failure of due diligence in recruiting an unqualified Executive Director breaches Article 10 of the Constitution on integrity

Court orders

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  1. 1.Declaration that the 1st Respondent served as Executive Director without proper academic qualifications and in breach of Article 10 of the Constitution and that the 2nd Respondent is liable for employing him without due diligence
  2. 2.Payment to the 1st Petitioner of 1 month salary in lieu of notice (Kshs. 86,000)
  3. 3.Payment of 8 months' salary as compensation for unlawful dismissal (8 x 86,000 = Kshs. 688,000), total Kshs. 774,000
  4. 4.Any terminal dues to be agreed upon or assessed by the Court
  5. 5.The 2nd Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 10, 22, 23, 50, 73, 75, 152, 153, 232, 258, 259; Chapter 6
  • Employment Act 2007Sections 10(6) and (7), 41, 43, 44(4)(d), 45(2)(a)-(c), 49(4)
  • Fair Administrative Actions Act

Cases cited (6)

  • Stephen Mbugua Chege –v- Nairobi City Water & Sewerage Company
    [2017] eKLR
  • International Planned Parenthood Federation –v- Pamela Ebot Arrey Effiom
    [2016] eKLR
  • Mary Chemweno Kiptui –v- Kenya Pipeline Company Limited
    [2014] eKLR
  • B –v- Attorney General
    [2004] 1 KLR 431
  • Judicial Service Commission –v- Gladys Boss Shollei & another
    [2014] eKLR
  • Anarita Karimi Njeru –v- The Attorney General
    (1979) KLR 54
Jurisdiction invoked
Articles 10, 22, 23, 73, 75, 153, 232, 258 and 259 of the Constitution of Kenya 2010, read with the Employment Act 2007

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, "Shebby Sakwa & another v Fazul Mohamed & 3 others [2019] KEELRC 1022 (KLR)", Case Analysis (2019). Petition No. 34 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1022/eng@2019-05-07

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