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ELRCDismissedNot stated in the judgment· [2019] KEELRC 1118 (KLR)

Martin Waweru Nguru v Attorney General [2019] KEELRC 1118 (KLR)

Employment and Labour Relations Court of Kenya
12 July 2019
MOMaureen Onyango
4,002 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 dismissed a public servant's Kshs.67 million claim, ruling his retirement in the public interest was lawful and future salaries cannot be claimed after termination.

What this practically means

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Executive summary

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The plaintiff, a public servant posted as Counsellor and Head of Chancery at the Kenya Embassy in The Hague in 1998, was recalled to Nairobi in May 1999 following differences with the Ambassador. He failed to report on three occasions, applied for unpaid study leave which was not approved, and returned to Kenya only in February 2000 after his diplomatic passports were withdrawn. Following a show cause letter for desertion of duty, the Ministerial Human Resource Advisory Committee recommended dismissal for gross misconduct, but the Public Service Commission retired him in the public interest in November 2000 to enable him access his terminal benefits. He sued for Kshs.67,710,865 in anticipated salaries, house allowances and Foreign Service Allowances, plus damages, contending his retirement violated Sections 28, 34 and 40 of the Service Commissions Act, was actuated by malice and breached natural justice. The court first disposed of a preliminary objection raised only in submissions that the plaintiff lacked locus standi having accepted retirement and drawn pension, holding that the point was not pleaded and that the ELRC had jurisdiction under Section 12(1)(a). On the merits, the court found the plaintiff absent without leave under Regulation 28, that his apology admitted the charge, and that Regulations 34 and 40 were inapplicable. The PSC had merely reduced the punishment. Applying the proportionality and mitigation principles in D. K. Njagi Marete, Maria Kagai Ligaga and Menginya Salim Murgani, the court held anticipatory remuneration for years after termination would be unjust enrichment. The suit was dismissed in its entirety with each party bearing its own costs.

Key legal issues

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01

Locus standi of the plaintiff to sue after accepting retirement and drawing pension

Holding

The plaintiff has locus standi; the point was not pleaded and the ELRC has jurisdiction under Section 12(1)(a)

Reasoning

The defendant raised estoppel and lack of locus standi only in submissions. The court held that parties are bound by pleadings and submissions cannot found a defence. In any event, the claim concerns unfair termination of employment, a dispute the ELRC is clothed with jurisdiction to determine under Section 12(1)(a) of the Employment and Labour Relations Court Act, so the suit was properly before the court.

p. 3
02

Whether the retirement in public interest violated Regulations 28, 34 and 40 of the Service Commissions Regulations

Holding

The retirement was lawful; the plaintiff was absent without leave under Regulation 28 and the PSC merely reduced the punishment from summary dismissal to retirement in public interest

Reasoning

The plaintiff admitted failing to report as directed despite three recalls, took leave before it was approved, and only returned after his diplomatic passports were withdrawn. His apology admitted guilt. Regulations 34 and 40 were inapplicable as he was never charged under Regulation 34 and Regulation 40 applies only to grounds not suitably dealt with under other provisions. The Ministerial Committee had considered his case under Regulation 28 recommending dismissal, and the PSC reduced the punishment to enable him access terminal benefits.

p. 6
03

Whether the plaintiff is entitled to the damages sought for anticipated salaries and allowances

Holding

No; anticipatory remuneration for years after termination is not a lawful remedy and would offend the principle of a fair go all round

Reasoning

Relying on D. K. Njagi Marete v TSC, Menginya Salim Murgani v KRA and Maria Kagai Ligaga v Coca Cola, the court held that remedies must be proportionate and an employee must mitigate loss. The plaintiff admitted receiving terminal dues and monthly pension, and awarding 14 years of anticipated salaries and Foreign Service Allowance would facilitate unjust enrichment and double remuneration from public coffers.

p. 6

Legal principles established

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  • Submissions are not pleadings and cannot be used to found a cause of action or a defence; parties are bound by their pleadings
  • An ELRC claim for unfair termination is properly before the court notwithstanding receipt of pension; the court has jurisdiction to inquire into the lawfulness of the termination
  • Employment remedies must be proportionate to economic injuries and must not facilitate unjust enrichment or double remuneration from public funds

Court orders

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  1. 1.The suit is dismissed in its entirety
  2. 2.Each party shall bear its own costs
Jurisdiction invoked
Section 12(1)(a) of the Employment and Labour Relations Court Act

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, "Martin Waweru Nguru v Attorney General [2019] KEELRC 1118 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1118/eng@2019-07-12

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