Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedELRC No. 1372 of 2014· [2019] KEELRC 1272 (KLR)

George Osero v Attorney General & 2 others [2019] KEELRC 1272 (KLR)

Employment and Labour Relations Court of Kenya
24 June 2019
2,140 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled a police officer's dismissal unfair because he was never given a hearing, awarding him maximum compensation for the wrongful termination.

What this practically means

#

Executive summary

#
The claimant, a former Administration Police Constable employed in November 1999, sued the Attorney General, the Inspector General of National Police Service and the National Police Service Commission, alleging unlawful, unreasonable and unfair dismissal. His case was that on 27th April 2012 he properly returned a procedurally assigned Ceska pistol to the armoury, signing it into the Firearms Movement Register, yet he was dismissed with effect from 11th May 2012 for allegedly conspiring to use the firearm without following firearm regulations and for unauthorised assignment. He asserted he was never subjected to properly constituted orderly room proceedings, was condemned unheard, and that his appeal was declined. He sought declarations of illegality, reinstatement, and payment of salary and allowances for the dismissal period. The respondents filed a response and submissions but called no witness, leaving the claim uncontroverted. The court held that due process was never followed: nothing showed the claimant was summoned to a disciplinary hearing or that proceedings were held finding him guilty. Applying sections 41 and 45(2) of the Employment Act, the court found the dismissal unfair and unjustified. The dismissal was declared unlawful and unprocedural and converted to a normal termination. The court awarded 12 months' salary as compensation (KES 367,008), one month's salary in lieu of notice (KES 30,584), payment of pension dues, and costs plus interest at court rates from the date of judgment. Reinstatement and the full back-salary claims were not granted in the form sought.

Key legal issues

#
01

Whether due process was followed before dismissal

Holding

Due process was not followed; the Claimant was condemned unheard with no disciplinary proceedings produced

Reasoning

The court noted that disciplinary procedures for Administration Police officers are set out in the law and that Section 41 of the Employment Act requires explanation and hearing before termination. Nothing was presented in court showing the Claimant was summoned to a disciplinary hearing, nor were any minutes or proceedings produced showing he was found guilty. The Respondents called no witnesses, leaving the Claimant's case uncontroverted. The dismissal was therefore both procedurally unfair and unjustified.

p. 4
02

Whether the dismissal was unfair under Section 45(2) of the Employment Act

Holding

The dismissal was unfair and unjustified as the Respondent failed to prove valid reason and fair procedure

Reasoning

Section 45(2) places the burden on the employer to prove that the reason for termination was valid and fair, related to conduct, capacity or compatibility or operational requirements, and that fair procedure was followed. The Respondents offered no evidence, so no valid reason or fair procedure was proved. The court found the dismissal unfair and unjustified and proceeded to consider remedies under its discretion.

p. 4
03

What remedies are appropriate

Holding

Maximum compensation of 12 months' salary, one month's notice pay, pension dues and costs

Reasoning

Given the callous manner in which the Respondents' officers condemned the Claimant without due regard to law and evidence, the court found him entitled to maximum compensation. It converted the unlawful dismissal to a normal termination and awarded 12 months' salary as compensation, one month's salary in lieu of notice, payment of pension dues, and costs with interest.

p. 4
04

Effect of Respondents' failure to call evidence

Holding

Submissions without evidence cannot defeat an uncontroverted claim

Reasoning

The Respondents filed a response and submissions but called no witness. Relying on Court of Appeal authority in CA No. 140/2008 citing Der Raj Sharma v Reginam and Michael Hausa v the State on documents marked for identification, the court held that submissions are not evidence, so the Respondents offered no evidence against the Claimant's case, which therefore remained uncontroverted.

p. 3

Legal principles established

#
  • An employer must follow fair procedure, including explanation and hearing, before terminating an employee on grounds of misconduct
  • Submissions filed without calling evidence cannot constitute evidence against an uncontroverted claim
  • A termination is unfair where the employer fails to prove a valid and fair reason and fair procedure

Court orders

#
  1. 1.Declaration that the dismissal was unlawful and unprocedural, converted to a normal termination
  2. 2.Compensation of 12 months' salary (12 x 30,584 = KES 367,008) for unfair and unlawful termination
  3. 3.One month's salary in lieu of notice (KES 30,584)
  4. 4.Payment of the Claimant's pension dues
  5. 5.Respondents to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

#

Legislation

  • Employment ActSection 41(1) and (2)
  • Employment ActSection 45(2)
  • Employment ActSection 44(3) and (4)
  • Employment ActSection 42(1)

Cases cited (3)

  • Der Raj Sharma vs Reginam
    (1953) 19 EACA 310
  • Michael Hausa vs the State
    (1994) 7-8 SCANJ 144
  • Republic vs Cabinet Secretary Ministry of Interior and Co-ordination of National Government and 6 Others Ex-parte Africa Centre for Open Governance and 7 others
    (2017) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "George Osero v Attorney General & 2 others [2019] KEELRC 1272 (KLR)", Case Analysis (2019). ELRC No. 1372 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1272/eng@2019-06-24

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