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ELRCPartially AllowedCause No 557 of 2014· [2020] KEELRC 529 (KLR)

Beatrice Nakhumicha Khaoya v Attorney General [2020] KEELRC 529 (KLR)

Employment and Labour Relations Court
12 August 2020
MOMaureen Onyango
4,849 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a dismissed government officer nearly Kshs.1 million because her employer never gave her a fair hearing before firing her.

What this practically means

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Executive summary

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The Claimant, an Assistant Land Registrar in the Ministry of Lands, was dismissed from service effective 10th May 2007 (letter issued 16th June 2010) on account of gross misconduct arising from alleged fraudulent registration of leases in Kitale. Her appeal and reviews to the Public Service Commission were unsuccessful, and she sued in April 2014 seeking declarations, reinstatement, damages, pension benefits and costs. The Respondent maintained that due procedure was followed and that she was accorded a fair hearing through written responses to two show cause letters. The Court framed three issues: the applicable law, the procedural and substantive fairness of the termination, and entitlement to reliefs. It held that the Employment Act 2007 governed the disciplinary process since the second show cause letter and the dismissal postdated its commencement. On substance, the Court found the Committee lacked a basis for finding gross misconduct: the investigation reports and technical documents were not produced, no complainants or witnesses were called, and the technical report needed to verify the allegations was never compiled. On procedure, the Claimant was never granted a hearing on the second show cause letter and her written response could not amount to a hearing under section 41 since she had no access to the documents and evidence relied upon. The dismissal was therefore unfair both substantively and procedurally. Reinstatement was refused as over three years had lapsed; future earnings were refused as lacking basis in contract and law. The Court reduced the summary dismissal to normal termination, entitling the Claimant to pension, and awarded Kshs.988,890 comprising 12 months' compensation, 38 months' withheld salary and allowances, and pay in lieu of notice, with interest and costs to the Claimant.

Key legal issues

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01

Whether the Respondent proved a valid and justifiable reason for the dismissal

Holding

No; the Committee lacked a basis for finding the Claimant guilty of gross misconduct as the reports and documents relied upon were not produced and no witnesses or complainants were called

Reasoning

The dismissal letter did not elaborate the gross misconduct. The Committee relied on a Task Force report and investigations whose documents were never availed to the Claimant or to the Court. The technical verification of the leases was never completed, the investigating officer having died and the report not compiled. No complainants or witnesses corroborated the allegations, so the Respondent failed to discharge its burden under sections 43(1) and 47(5) of the Employment Act.

p. 7
02

Whether the termination procedure was fair under section 41 of the Employment Act

Holding

No; no hearing was conducted on the second show cause letter and the correspondence did not amount to a hearing

Reasoning

The second show cause letter was issued on 22nd September 2009 when the Employment Act 2007 was in force, obligating the employer to accord the Claimant a hearing with an opportunity to make representations. The Respondent's own evidence showed the Committee considered only her written response, without access to documents or witnesses. Reliance on Kenya Revenue Authority v Menginya Salim Murgani was distinguished because in that case the employee was involved; here she was not.

p. 7
03

The applicable law given the suspension in 2007 and dismissal in 2010

Holding

The Employment Act 2007 applied to the disciplinary process

Reasoning

Although the suspension letter of 10th May 2007 predated the Employment Act 2007, the second show cause letter of 22nd September 2009 and the dismissal of 16th June 2010 occurred after the Act came into force, so the Act governed the hearing of the disciplinary case.

p. 4
04

Whether the Claimant was entitled to pension and accrued benefits

Holding

Yes; the summary dismissal was reduced to normal termination, entitling her to pension and withheld salary and benefits

Reasoning

Having found the termination unfair, the Court reduced the summary dismissal to normal termination, making the Claimant entitled to pension. The Court also awarded salary and allowances withheld during the 38-month suspension period and pay in lieu of notice, but refused future earnings as there was no contractual or legal basis.

p. 7

Legal principles established

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  • An employer must prove both a valid reason and a fair procedure for termination under sections 43, 45 and 47(5) of the Employment Act
  • Where a second show cause letter is issued under the Employment Act 2007, the employer is bound by section 41 to accord the employee a hearing including representation
  • Correspondence does not constitute a hearing under section 41 where the employee had no access to the documents, witnesses or evidence relied upon

Court orders

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  1. 1.Declaration that the summary dismissal was wrongful and unlawful for failing to adhere to the Employment Act
  2. 2.Refusal of reinstatement as more than 3 years had lapsed since termination
  3. 3.Award of 12 months' salary as compensation for unfair termination (Kshs.232,680)
  4. 4.Reduction of summary dismissal to normal termination with the result that the Claimant is entitled to pension, to be facilitated by the Respondent through relevant channels
  5. 5.Award of salary and benefits withheld from suspension to dismissal: 38 months at Kshs.15,140 basic pay, Kshs.3,500 house allowance and Kshs.750 medical allowance per month, making Kshs.736,820
  6. 6.Award of pay in lieu of notice of Kshs.19,390
  7. 7.Total award of Kshs.988,890 plus pension due from date of termination
  8. 8.Interest on salary arrears and pay in lieu of notice from date of filing suit; interest on compensation from date of judgment
  9. 9.Respondent to bear the Claimant's costs of the suit

Authorities

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Legislation

  • Employment Actsections 41, 43(1), 44(4), 45(1) and (2), 45(4) and (5), 47(5), 49
  • Registered Land ActCap 300
  • Public Service Commission of Kenya Discipline Manual 2008paragraphs 5(a), 6(a), 9, 10, 13
  • Constitution of KenyaArticles 159(2)(d), 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (11)

  • Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Limited
    [2014] eKLR
  • Liz Ayany v Leisure Lodges Limited
    [2018] eKLR
  • Malachi Ochieng Pire v Rift Valley Agencies
    [2013] eKLR
  • Jared Aimba v Fina Bank Limited
    [2016] eKLR
  • Rebecca Ann Maina & 2 Others v Jomo Kenyatta University of Agriculture and Technology
    [2014] eKLR
  • Evans Kamadi Misango v Barclays Bank of Kenya
    [2015] eKLR
  • Alice Nyanduko Omwancha v Kenya Industrial Estates Limited
    [2019] eKLR
  • Festus Kyalo Muthiani v Kenyatta National Hospital
    [2017] eKLR
  • Kenneth Karisa Kasemo v Kenya Bureau of Standards
    [2013] eKLR
  • Peter Otabong Ekisa v County Government of Busia
    [2017] eKLR
  • Kenya Revenue Authority v Menginya Salim Murgani
    [2010] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (Art. 162(2) of the Constitution implied; not expressly cited)

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, "Beatrice Nakhumicha Khaoya v Attorney General [2020] KEELRC 529 (KLR)", Case Analysis (2020). Cause No 557 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/529/eng@2020-08-12

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