Mathew Munyao v National Transport & Safety Authority [2019] KEELRC 2554 (KLR)
The bottom line
#Kenya's Employment Court ruled NTSA unfairly sacked its Road Safety Director, awarding him Kshs. 7.3 million for his unexpired contract term.
What this practically means
#Executive summary
#Key legal issues
#Validity of reasons for termination under section 43
None of the three stated reasons (issuing an approved list of trainers, false imprest claims, insubordination) was established as a valid reason at the time of termination
No evidence showed the claimant issued the trainers' list to operators; keeping a repository list was within his duties. No proof supported the imprest allegations, no amount was quantified and no surcharge or counterclaim was made. On insubordination, the HR Committee did not identify the abusive or insulting language as required by section 47(5), and the ground was introduced without prior notice contrary to section 41.
Due process in the disciplinary proceedings
The procedure was procedurally unfair: the Board adopted the ad hoc committee's preliminary report, predetermining the disciplinary case, and some grounds were introduced without notice
The Board, as final decision-maker, ought to have kept an arm's-length position from the investigative function; by adopting the preliminary report it predetermined the case. The show-cause proceedings were also founded on the erroneous premise that the claimant was a state officer subject to the Leadership and Integrity Act, which was oppressive and unfair. Some reasons were raised at hearing without prior notice, breaching section 41.
Remedies - reinstatement
Reinstatement justified but limited to the unexpired 16 months of the fixed-term contract, with 16 months' salary of Kshs. 7,369,280.00
The contract would have expired around June 2017; the renewal clause's conditions had not accrued, so legitimate expectation of renewal was mere hope. The claimant served with a clean record and was removed through a largely predetermined process violating Article 236; this was a compelling circumstance under section 49 justifying reinstatement for the unexpired term only.
Counterclaim - injunction and removal of publications
Counterclaim dismissed; the claimant's publications were on a privileged occasion and a public body cannot sue in defamation
A public body cannot at common law maintain a defamation action; the defamed individuals were not parties. The claimant established a moral and social duty to reply publicly, amounting to qualified privilege, especially as the respondent retained his profile on its website. The respondent failed to establish any Article 24 limitation of the claimant's rights under Articles 33, 34 and 35.
Legal principles established
#- An authority vested with power to make a final disciplinary decision must keep an arm's-length position from the investigative function, failing which the decision is predetermined and procedurally unfair
- An employer must specify the alleged abusive or insulting words to discharge the burden under section 47(5) of the Employment Act
- A public body or government agency cannot maintain an action in defamation at common law
- Jurisdiction to bar a serving or former public officer from publishing information is to be exercised very sparingly and only upon clearly established breach of public service terms, code of conduct or law
- An employee unfairly suspended or terminated is entitled to at least partial reinstatement for the unexpired term and the salaries due for that period
Court orders
#- 1.Declaration that the respondent's action to terminate the claimant's employment was unfair within the meaning of section 45 of the Employment Act and therefore grossly unfair
- 2.Declaration that the respondent's actions infringed on the claimant's legitimate expectation that as a public authority it would uphold fairness, equality, good governance, natural justice and constitutionalism
- 3.Respondent to pay the claimant Kshs. 7,369,280.00 by 01.03.2019, failing which interest at court rates from the date of judgment till full payment
- 4.Dismissal of the counterclaim with costs
- 5.Respondent to pay the claimant's costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Constitution (Articles 41, 47, 236 invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mathew Munyao v National Transport & Safety Authority [2019] KEELRC 2554 (KLR)", Case Analysis (2019). Employment Cause (memorandum of claim filed 06.07.2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2554/eng@2019-01-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.