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ELRCPartially AllowedCause No 2012 of 2014· [2019] KEELRC 2444 (KLR)

Ezekiel Otiende & 2 others v Principal Secretary Ministry of Interior and Internal Coordination & another [2019] KEELRC 2444 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
25 January 2019
ANAbuodha Jorum Nelson
1,971 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 ordered the Ministry of Interior to pay three fired immigration officers twelve months' salary each because it could not prove they committed the misconduct alleged.

What this practically means

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Executive summary

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Three immigration officers interdicted by the Principal Secretary, Ministry of Interior, on allegations of gross misconduct - receiving Kshs 500 from undercover EACC officers at Lunga Lunga Border Control Point for temporary entry permits without issuing government receipts - were dismissed following show-cause responses and unsuccessful appeals. They sued, contending they were not on duty on the material date of 28 November 2013, and supporting this with a PISCES productivity report, Occurrence Book extracts and a letter from the Chief Immigration Officer Lunga Lunga exonerating them. They also complained the dismissal letters did not consider their responses, and that they were never shown the EACC video prior to interdiction. The respondent maintained the EACC integrity tests were audio and video recorded, and alleged the PISCES report and Occurrence Book could be manipulated, without alleging the claimants had manipulated them or producing evidence of how manipulation could occur. The court viewed the video, found its visual and sound quality so poor that the persons in it could not be identified or matched to the claimants, and held it unreliable and of no evidentiary value. Applying section 43(1) of the Employment Act, the court held the respondent had failed to prove the reasons for termination, rendering the terminations unfair under section 45. Reinstatement was declined as impractical given the elapsed time; instead each claimant received twelve months' salary as compensation, computed on salaries at termination, with interest from judgment, subject to taxes and statutory deductions, plus costs of the suit. Parties were to compute the quantum and return to court on 11 March 2019 for recording of final orders.

Key legal issues

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01

Whether the employer proved valid and fair reasons for termination

Holding

The respondent failed to prove the reasons for termination, rendering the dismissal unfair under sections 43(1) and 45 of the Employment Act

Reasoning

The claimants produced a PISCES productivity report, Occurrence Book extracts and a letter from the Chief Immigration Officer Lunga Lunga showing they were not on duty on the material date. The respondent merely asserted these records could be manipulated but neither alleged the claimants manipulated them nor produced any evidence of how manipulation could occur. The video evidence was of poor quality in visuals and sound, making identification unreliable. Consequently the burden on the employer under section 43(1) was not discharged and the termination was unfair under section 45.

p. 3
02

Evidentiary value of the EACC undercover video recording

Holding

The video recording was unreliable and of no evidentiary value due to poor visual and sound quality preventing identification

Reasoning

The court viewed the video produced by the EACC undercover detectives and found that neither the faces nor voices of the persons captured could be clearly identified or matched with the claimants. Even the respondent's own witness conceded he did not hear the officers ask for change and could not confirm receipt issuance from the clip. In these circumstances the recording could not sustain a finding of misconduct against the claimants.

p. 3

Legal principles established

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  • Under section 43(1) of the Employment Act the employer must prove the reasons for termination; failure renders the termination unfair under section 45
  • Where an employer alleges manipulation of an employee's exculpatory records without producing evidence of such manipulation, the exculpatory evidence stands

Court orders

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  1. 1.Each claimant awarded twelve months' salary as compensation for unfair termination of employment
  2. 2.Compensation to be computed based on the claimants' salaries as at the time of termination
  3. 3.The award to attract interest at court rates from the date of judgment and be subject to taxes and statutory deductions
  4. 4.Parties to compute the quantum of the award and return to court on 11.3.2019 for recording of final orders
  5. 5.The claimants to have costs of the suit

Authorities

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Legislation

  • Employment Actsection 43(1)
  • Employment Actsection 45
  • Criminal Procedure Codenull
Jurisdiction invoked
Employment and labour relations jurisdiction under Article 162(2) of the Constitution (court not expressly stated in judgment)

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, "Ezekiel Otiende & 2 others v Principal Secretary Ministry of Interior and Internal Coordination & another [2019] KEELRC 2444 (KLR)", Case Analysis (2019). Cause No 2012 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2444/eng@2019-01-25

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