Evans Arthur Mukolwe v Attorney General & another [2019] KEELRC 2109 (KLR)
The bottom line
#A former Kenya Wildlife Service director wrongfully removed from his job won Kshs 28.9 million after the court found no fair process was followed.
What this practically means
#Executive summary
#Key legal issues
#Authenticity of the letter dated 24th June 2004 setting the claimant's revised terms
The court found the letter authentic and that KWS varied the claimant's terms vide that letter, proved on a balance of probabilities; the forgery allegation was an afterthought
KWS implemented and paid the revised terms for over a year without questioning them; the Human Resource and Finance departments would not have sanctioned payments without Board approval; the chairman never reported forgery to police; the claimant was never charged with forging the letter; the late forensic evidence had no marked differences on the comparison chart and no narrative of differences, giving it little probative value.
Validity of the suspension and replacement of the claimant
The termination was unlawful and unfair - no valid reason was proved and no fair procedure was followed
The claimant was never charged with any disciplinary offence, given no notice to show cause, no disciplinary hearing, no termination letter; the parent ministry and Inspectorate gave no evidence; his acquittal by the High Court on appeal from the anti-corruption conviction left the respondents with no proof of misconduct.
Whether the claimant is entitled to damages for the unserved term of the fixed term contract
Yes - damages equivalent to the unserved 22 months awarded (computed as Kshs 24,178,000) based on legitimate expectation
The claimant was employed by the head of state on a three-year fixed term, had a legitimate expectation the terms would be honoured, forfeited a lucrative Geneva posting, and suffered hardship, criminal prosecution (later overturned) and the indignity of forgery allegations. The contract was unlawfully terminated with 22 months unserved; reinstatement being impracticable, damages are the appropriate remedy.
The 2nd respondent's counterclaim
Partly allowed: salary advance of Kshs 2,500,000, carpets and curtains Kshs 662,300, electricity bills Kshs 136,137 and rent Kshs 75,000 awarded, total Kshs 3,373,437, offset against the claimant's award; refund of salaries/allowances dismissed and medical bills disallowed
Salary advance balance was proved by defence witnesses; house allowance had been paid so furnishings, rent, electricity were reimbursable expenses recoverable; medical bills predated the medical cover; the salaries paid under the valid 24th June 2004 letter were legitimately paid and not refundable.
Whether acquittal on criminal charges bars reliance on the same facts by the employer
The acquittal, coupled with the absence of any workplace disciplinary hearing, meant the respondents had no evidence of valid reason for the termination
The 1st respondent cited authority that acquittal does not preclude disciplinary action on the same facts, but the court found there was in fact no disciplinary process at all and no evidence from the ministry or Inspectorate; the acquittal by the High Court reinforced the absence of any valid reason.
Legal principles established
#- Where an employee is not subjected to any disciplinary hearing and was acquitted on appeal of criminal charges arising from the same facts, the employer bears the consequences of having no evidence of a valid reason for suspension and replacement
- A document whose terms an employer has implemented and paid on for over a year without protest cannot later be disowned as a forgery, particularly where no police complaint of forgery was ever made by the alleged author
- Where a fixed-term contract is terminated unlawfully, the employee may be awarded damages equivalent to the unserved term based on the doctrine of legitimate expectation, notwithstanding that the Employment Act, 2007 was not in force when the cause of action arose
Court orders
#- 1.Judgment entered in favour of the claimant against the respondents in the total sum of Kshs 32,300,000 less counterclaim of Kshs 3,373,437, net award Kshs 28,926,563
- 2.Kshs 24,178,000 in damages equivalent to the unserved term of the fixed term contract based on the doctrine of legitimate expectation
- 3.Three (3) months salary in lieu of notice Kshs 3,264,000
- 4.Gratuity for served term at 20% of basic salary, Kshs 2,660,000
- 5.Two months arrear salary Kshs 2,198,000
- 6.Interest on the damages at court rates from date of judgment and from date of filing suit in respect of the other heads
- 7.Counterclaim awarded to the 2nd respondent in the sum of Kshs 3,373,437 (salary advance Kshs 2,500,000; carpets and curtains Kshs 662,300; electricity bills Kshs 136,137; rent paid Kshs 75,000), to be offset against the claimant's award
- 8.Claim for refund of overpayment of salaries and allowances (part of the counterclaim) dismissed; medical bills claim of Kshs 732,929 disallowed
- 9.Prayer for reinstatement declined as not practicable
- 10.Respondent to pay half (1/2) the costs of the suit
- Jurisdiction invoked
- Original employment and labour jurisdiction of the ELRC over a claim for remuneration, reinstatement and damages arising from termination of employment as Director of KWS
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Evans Arthur Mukolwe v Attorney General & another [2019] KEELRC 2109 (KLR)", Case Analysis (2019). ELC Cause (formerly filed 2005), Amended Memorandum of Claim dated 28th August 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2109/eng@2019-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.