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ELRCPartially AllowedPetition No. 127 of 2018· [2020] KEELRC 312 (KLR)

Abdulahi Mohammed Omar v Energy Regulatory Commission [2020] KEELRC 312 (KLR)

Employment and Labour Relations Court of Kenya
15 October 2020
6,033 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 ordered the Energy Regulatory Commission to reinstate a dismissed employee and pay him Kshs 2 million because his disciplinary hearing was unfair.

What this practically means

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Executive summary

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The Petitioner, a former employee of the Energy Regulatory Commission, petitioned under Articles 22, 258 and 165(2) of the Constitution challenging his summary dismissal on 8th November 2018 after a disciplinary process arising from allegations of abusive language, inappropriate behaviour and insubordination towards his supervisor, Cyprian Nyakundi. He sought declarations that the dismissal violated Articles 10, 27, 28, 32, 33, 35, 41, 47, 50 and 236 of the Constitution and Sections 44, 45 and 46 of the Employment Act, certiorari, reinstatement and damages. The Respondent contended the grievances were purely employment matters, that the disciplinary process was procedurally and substantively fair, and that reinstatement was unwarranted, besides alleging the Petitioner had not come to equity with clean hands. The Court framed four issues: valid reasons for termination, due process, constitutional violations, and remedies. It found the Respondent failed to disclose the abusive words allegedly used or the particulars of insubordination, relying on CMC Aviation v Mohammed Noor and Abraham Gumbo v KMSA, and that minutes of the disciplinary hearing were missing while the Petitioner was denied information, CCTV footage and evidence relied upon contrary to the Fair Administrative Action Act. The Court held the dismissal lacked valid reason, was procedurally unfair, and breached Articles 41 and 47 of the Constitution. It declared the dismissal unfair and unjustified, ordered back pay from the date of dismissal, Kshs 2 million in damages, reinstatement or re-engagement from the date of judgment, and costs with interest at court rates. The Petition succeeded in substantial part, though damages of Kshs 5 million sought were not fully awarded.

Key legal issues

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01

Valid reasons for termination

Holding

The dismissal lacked valid reason; the employer failed to prove the reasons under Section 43(1) of the Employment Act

Reasoning

Section 43(1) requires the employer to prove the reason for termination. The Respondent relied on abusive language without disclosing the words used, and on insubordination without particulars of any instruction refused. Following CMC Aviation v Mohammed Noor and Abraham Gumbo v KMSA, the undisclosed grounds were afterthoughts and the dismissal lacked valid reason.

p. 7
02

Due process and fair hearing

Holding

The disciplinary process denied the Petitioner a fair hearing under Section 41 of the Employment Act and the Fair Administrative Action Act

Reasoning

Although a show cause letter was issued and a hearing held, the Respondent refused to supply the HRAC report, CCTV footage and evidence relied upon. Sections 3(a), 3(g) and 6(1) of the Fair Administrative Action Act entitle a person to prior notice, information, materials and evidence relied upon. The Petitioner was therefore condemned without a fair hearing.

p. 7
03

Constitutional violation

Holding

Article 47 rights to fair administrative action were breached by the dismissal without due process

Reasoning

Given the failure to accord a fair hearing and the absence of valid reasons, the Petitioner's rights under the Constitution, particularly Article 47 which guarantees expeditious, efficient, lawful, reasonable and procedurally fair administrative action with written reasons, were infringed.

p. 8
04

Remedies for unfair termination

Holding

Back pay, damages of Kshs 2 million, and reinstatement or re-engagement were granted

Reasoning

Having found the termination unfair and in breach of Articles 41 and 47, the Court exercised its discretion to order back pay from the date of dismissal, Kshs 2 million in damages, and reinstatement or re-engagement from the date of judgment, with costs and interest.

p. 8

Legal principles established

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  • An employer alleging abusive language as a ground for summary dismissal must disclose the actual words used; otherwise the ground is an afterthought
  • An employer alleging insubordination must disclose the particular instruction refused
  • A disciplinary report is not a substitute for minutes of a disciplinary hearing
  • Denial of information and evidence relied on in a disciplinary process breaches the right to a fair hearing under the Fair Administrative Action Act

Court orders

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  1. 1.A declaration that the decision to dismiss the Petitioner was unfair and unjustified and in contravention of Articles 41 and 47 of the Constitution
  2. 2.The Petitioner is entitled to payment of his back pay from the time of dismissal to date
  3. 3.The Petitioner be paid 2 million as damages for the unfair and unjustified termination
  4. 4.The Petitioner be reinstated or be re-engaged in his employment from the date of the judgment
  5. 5.Respondent to pay costs of the suit plus interest at Court rates with effect from the date of the judgment
Jurisdiction invoked
Articles 22, 258 and 165(2) of the Constitution of Kenya

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, "Abdulahi Mohammed Omar v Energy Regulatory Commission [2020] KEELRC 312 (KLR)", Case Analysis (2020). Petition No. 127 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/312/eng@2020-10-15

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