Abdulahi Mohammed Omar v Energy Regulatory Commission [2020] KEELRC 312 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Valid reasons for termination
The dismissal lacked valid reason; the employer failed to prove the reasons under Section 43(1) of the Employment Act
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.
Due process and fair hearing
The disciplinary process denied the Petitioner a fair hearing under Section 41 of the Employment Act and the Fair Administrative Action Act
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.
Constitutional violation
Article 47 rights to fair administrative action were breached by the dismissal without due process
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.
Remedies for unfair termination
Back pay, damages of Kshs 2 million, and reinstatement or re-engagement were granted
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.
Legal principles established
#- 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
#- 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.The Petitioner is entitled to payment of his back pay from the time of dismissal to date
- 3.The Petitioner be paid 2 million as damages for the unfair and unjustified termination
- 4.The Petitioner be reinstated or be re-engaged in his employment from the date of the judgment
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.