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ELRCPartially AllowedCause No 2 of 2018· [2019] KEELRC 2600 (KLR)

Noah Kipkoech Kosgei v Principal Secretary Ministry of Interior National Government & others [2019] KEELRC 2600 (KLR)

Employment and Labour Court (High Court of Kenya) at Eldoret
14 November 2019
ANAbuodha Jorum Nelson
2,576 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 a chief's dismissal unlawful because the government never gave him a chance to defend himself before terminating him.

What this practically means

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Executive summary

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The claimant petitioned the Employment and Labour Court at Eldoret seeking declarations that he was lawfully appointed Chief of Chemundu Location with effect from 25th June 2009, that he was a permanent and pensionable employee, and that his dismissal via letter dated 20th September 2010 was unlawful and procedurally flawed because he was not accorded an opportunity to defend himself. The respondents, through the affidavit of the Principal Secretary for Interior, Dr (Eng) Karanja Kibicho, asserted that the claimant had presented conflicting KCE certificates - first Division II and later Division III - justifying cancellation of his appointment on grounds of dishonesty and lack of integrity, and that he had been asked to avail his certificates, thus receiving a fair hearing; they denied any entitlement to salary. Counsel for the claimant relied on the Employment Act, arguing unfair termination and denial of a right to be heard; counsel for the respondents relied on Articles 10 and 232 of the Constitution. The court held that once the appointment letter was issued the claimant was an employee whose termination had to comply with the Employment Act, and that even if guilty of the allegations, he ought to have been called upon to show cause and subjected to a disciplinary hearing, which never occurred. The court declared the appointment lawful and the dismissal unlawful and unfair, declined reinstatement due to lapse of time, awarded the maximum twelve months' salary (Kshs. 200,304/-) as compensation for unfair termination, and awarded the claimant costs of the petition. The petition therefore partially succeeded.

Key legal issues

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01

Fair hearing before termination of employment

Holding

Even if the claimant was guilty of presenting a falsified certificate, the termination was unfair because no show-cause letter or disciplinary hearing was undertaken.

Reasoning

The court held that once the appointment letter had been issued, the claimant was in fact an employee, and termination of his services had to comply with the Employment Act. The respondent acted on the allegations of dishonesty without subjecting the claimant to a disciplinary process, denying him the opportunity to defend himself, rendering the dismissal procedurally unfair.

p. 4
02

Remedy for unfair termination where reinstatement is impracticable

Holding

In lieu of reinstatement, the court awarded the maximum twelve months' salary as compensation for unfair termination.

Reasoning

Considering the time elapsed since the termination, reinstatement was not ordered. Given the circumstances of the termination, the court exercised its discretion under the Employment Act to award the maximum compensatory period of twelve months' salary, computed on the claimant's monthly salary of Kshs. 16,692/-, totalling Kshs. 200,304/-.

p. 4
03

Remedy for dismissal based on fraud - entitlement to salary arrears

Holding

The claimant was not awarded salary arrears from the date of termination, the respondent having alleged the appointment was procured through fraud; the court instead granted compensation for unfair termination.

Reasoning

The respondents contended that the claimant, having allegedly presented a falsified KCE certificate, could not benefit from his fraud and was not entitled to unpaid salary. The court did not award the claimed salary arrears, confining its award to the twelve months' compensation for unfair termination.

p. 3

Legal principles established

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  • Where there is a statute that adequately addresses a dispute it is unnecessary to invoke the Constitution unless the issues cannot be fully addressed without it.
  • An employee whose services are terminated is entitled to be given a show-cause opportunity and a disciplinary hearing before termination.

Court orders

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  1. 1.A declaration that the claimant was lawfully and procedurally appointed as Chief of Chemundu Location
  2. 2.A declaration that the claimant's dismissal from public service was unlawful and unfair
  3. 3.An award of Kshs. 200,304/- being twelve months' salary as compensation for unfair termination
  4. 4.Costs of the petition to the claimant

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 20, 21, 22, 35, 50(1), 232
  • Employment Actsections 44(3), 45, 47(1)(2) as cited by parties (also Fair Administrative Actions Act s.47)
  • Fair Administrative Actions Actsection 47(1)(2)
  • Public Service Commissionstandards and objectives (referred to as Public Service Commission 2012)
Jurisdiction invoked
Article 10, 20, 21, 22, 35, 50(1) of the Constitution; section 47(1)(2) Fair Administrative Actions Act; section 44(3) and 45 Employment Act

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, "Noah Kipkoech Kosgei v Principal Secretary Ministry of Interior National Government & others [2019] KEELRC 2600 (KLR)", Case Analysis (2019). Cause No 2 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2600/eng@2019-11-19

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