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ELRCDismissedPetition dated 3rd August 2016 (final Amended Petition dated 18th January 2019)· [2020] KEELRC 236 (KLR)

Kelly Marina Kokuai v Kajiado County Assembly Service Board [2020] KEELRC 236 (KLR)

Employment and Labour Relations Court
13 November 2020
MOMaureen Onyango
3,989 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a dismissal challenge because the employee refused to attend her own disciplinary hearing and offered no proof the committee was invalid.

What this practically means

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Executive summary

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The Petitioner, formerly a procurement assistant and later acting procurement officer of the Respondent (Kajiado County Assembly), petitioned the Employment and Labour Relations Court seeking declarations that her summary dismissal on 27th February 2017 violated Articles 3(1), 10, 27, 29(d), 41, 47, 73, 232 and 236 of the Constitution, that the Disciplinary Committee lacked jurisdiction and was conflicted, and that the rules of natural justice were violated. She sought reinstatement without loss of benefits, alternatively 12 months' gross salary as compensation, damages, interest and costs. She contended the disciplinary committee was improperly constituted with non-employees, was held in secret venues, and that she was denied evidence of the allegations. The Respondent, through the Clerk's Replying Affidavit, asserted that the Petitioner resisted lawful restructuring under the Public Procurement and Asset Disposal Act 2015, sabotaged a colleague, and was disciplined after an investigatory audit found pilferage of procurement records. The court framed two issues: whether the termination was lawful, fair and justified, and whether the reliefs were due. It found the Petitioner had challenged the committee's composition but adduced no evidence of what a properly constituted board would be, her allegations remaining mere allegations. Having refused to submit to the committee's proceedings, she was estopped from disputing their outcome. All reliefs, being pegged on the failed first issue, were refused. The petition was dismissed with each party bearing its own costs. Judgment was delivered virtually at Nairobi on 13th November 2020 pursuant to COVID-19 directions.

Key legal issues

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01

Whether the summary dismissal was lawful, fair and justified

Holding

The dismissal was upheld; the Petitioner failed to prove unfairness or improper constitution of the disciplinary committee and was estopped from disputing its outcome.

Reasoning

The court examined the disciplinary procedure under sections 41 and 44 of the Employment Act. The Petitioner challenged the committee's composition but produced no evidence, such as the Human Resource Manual, of what a properly constituted board would be. Her allegations remained mere allegations. Having refused to submit to the committee's proceedings on jurisdictional objections while the committee nevertheless sat and heard witnesses, she was estopped from disputing its report and her subsequent dismissal.

p. 6
02

Whether the Petitioner was entitled to the reliefs sought

Holding

None of the reliefs were granted as they depended on the first issue which was determined against the Petitioner.

Reasoning

The Petitioner sought declaratory orders, reinstatement, 12 months' compensation, damages, interest and costs. Since the court found she authored her own fate by failing to submit to the disciplinary proceedings, all orders pegged on the finding of unlawful or unfair termination fell away. The petition was dismissed in its entirety with no order as to costs.

p. 6

Legal principles established

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  • An employee must be afforded the opportunity to be heard even in the case of summary dismissal.
  • A termination passes the fairness test only if there is both substantive justification and procedural fairness.
  • A party alleging improper constitution of a disciplinary board must adduce evidence, such as the Human Resource Manual, of what constitutes a properly constituted board; mere allegation is insufficient.
  • An employee who fails to prove improper constitution of a disciplinary committee and refuses to submit to it is estopped from disputing the outcome of the proceedings.

Court orders

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  1. 1.The entire petition is dismissed.
  2. 2.Each party shall bear its own costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 3(1), 10, 23(3)(a), 27, 29(d), 41, 47, 48, 73, 159(2)(d), 232, 236
  • Employment ActSections 41, 44(4), 47(5), 49(1)(c), 49(4)(a), 50
  • Employment and Labour Relations Court ActSection 12(3)
  • Public Procurement and Asset Disposal Act 2015Sections 2(1) and 47(1)
  • Supplies Practitioner Management Act 2007Section 20(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (6)

  • Hon Kanini Kega v Okoa Kenya Movement & 6 Others
    [2014] eKLR
  • CMC Aviation Limited v Mohammed Noor
    [2015] eKLR
  • James Omariba Nyaoga & Another v Speaker of the County Assembly – Kisii County & 2 Others
    [2016] eKLR
  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    [2014] eKLR
  • Walter Ogal Anuro v Teacher Service Commission
    [2013] eKLR
  • Patrick Nyongesa Makokha v Teachers Service Commission & Eldoret Polytechnic
    [2019] eKLR
Jurisdiction invoked
Article 23(3)(a) of the Constitution and Section 12(3) of the Employment and Labour Relations Court 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, "Kelly Marina Kokuai v Kajiado County Assembly Service Board [2020] KEELRC 236 (KLR)", Case Analysis (2020). Petition dated 3rd August 2016 (final Amended Petition dated 18th January 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/236/eng@2020-11-13

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