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ELRCPartially AllowedNot stated in judgment (Employment and Labour Relations Court Claim)· [2019] KEELRC 2418 (KLR)

Edward Ndombi Ukokhe v Attorney General & another [2019] KEELRC 2418 (KLR)

Employment and Labour Relations Court of Kenya
18 January 2019
JRJames RikaJAJoram Nelson Abuodha
1,523 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 that 'retirement in the public interest' cannot be used to mask unfair dismissals, awarding an officer 12 months' salary in compensation.

What this practically means

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Executive summary

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The Claimant was employed in 1979 as a Subordinate Officer and rose to Supplies Officer. In 2002 he and two colleagues were interdicted and charged with false accounting by a Public Officer in a Nairobi Chief Magistrate's Court; all three were acquitted in July 2003. His two colleagues were reinstated, but the Claimant was retired in Public Interest effective from the date of interdiction by a letter dated 28th September 2004. His appeals and a review to the Public Service Commission were dismissed and his file closed without reasons. He filed this Claim in May 2011 seeking notice pay, service pay, annual leave pay, a declaration of unlawful termination, damages, reinstatement and costs. The Respondents argued the Claim had been withdrawn and that retirement was lawful. The Court found no Notice of Withdrawal or Court order on record. It held that the Respondents gave no reasons justifying retirement in Public Interest, that there was no parallel administrative process despite the acquittal, and no explanation for treating the Claimant differently from his reinstated colleagues. Applying High Court and E&LRC authorities, the Court held retirement in Public Interest must be exercised objectively and in a quasi-judicial manner, and must not cover up wrongful terminations. It declared the retirement unfair and unlawful, awarded notice pay of Kshs. 12,500 and 12 months' salary (Kshs. 150,000) as compensation, but declined service pay, annual leave pay, special and punitive damages and reinstatement, and made no order on costs.

Key legal issues

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01

Whether the Claim had been withdrawn

Holding

The Claim had not been withdrawn; no Notice of Withdrawal or Court order was on record

Reasoning

The Respondents alleged withdrawal but produced no Notice of Withdrawal, no recorded Court order, and never brought the alleged withdrawal to the Court's attention during seven years of proceedings. Claims of similar suits elsewhere were likewise unsupported by any evidence.

p. 2
02

Whether retirement in Public Interest was fair and lawful

Holding

Unfair and unlawful - no valid reasons, no internal disciplinary process, and unexplained differential treatment compared to similarly charged colleagues who were reinstated

Reasoning

The Claimant was interdicted pending a criminal trial in which he and colleagues were acquitted. No parallel administrative process faulted him. His colleagues were reinstated while he alone was retired. Appeals and review to the PSC were dismissed without reasons. Retirement in Public Interest was thus a substitute for valid reasons and procedurally and substantively flawed.

p. 3
03

Whether compensation was merited

Holding

Yes - 12 months' salary plus notice pay awarded

Reasoning

The Claimant had over 20 years of service, was cleared of criminal charges, no workplace process contradicted the acquittal, and his appeals were dismissed without reasons. Termination was flawed in substance and procedure, warranting the maximum compensatory award of 12 months' salary.

p. 3

Legal principles established

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  • An employer must approach retirement of officers in Public Interest with an open mind, with objective and demonstrable grounds, acting in a quasi-judicial manner
  • Retirement in Public Interest must not be used as a tool for covering up wrongful termination decisions
  • Similarly placed employees must be treated alike; unexplained differential treatment vitiates termination

Court orders

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  1. 1.Declaration that retirement of the Claimant in Public Interest was unfair and unlawful
  2. 2.Respondents to pay the Claimant notice pay at Kshs. 12,500 and the equivalent of 12 months' salary in compensation for unfair termination at Kshs. 150,000, total Kshs. 162,500
  3. 3.No order on the costs

Authorities

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Legislation

  • Penal CodeSection 331 (false accounting by a Public Officer)

Cases cited (5)

  • Geoffrey Muguna Mburugu v Attorney-General
    H.C.C.C Number 3472 of 1994
  • John Mulobi v Attorney-General
    Law Monthly No. 15 of March/April 1989
  • Sheikh Abubakar Bwanakai Abdallah v Judicial Service Commission & Another
    [2017] e-KLR
  • D.K. Njagi Marete v Teachers Service Commission
    [2013] e-KLR
  • John Cheruyiot v The Attorney-General & Another
    [2018] e-KLR
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court under the Employment Act and Labour Relations Act (claim for unfair termination)

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, "Edward Ndombi Ukokhe v Attorney General & another [2019] KEELRC 2418 (KLR)", Case Analysis (2019). Not stated in judgment (Employment and Labour Relations Court Claim). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2418/eng@2019-01-18

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