Paschal Akong’o Sihudu & 34 others v Attorney General [2020] KEELRC 531 (KLR)
The bottom line
#Kenya's Employment Court ruled 35 meteorological staff were unlawfully retrenched in 2000 and awarded them severance, compensation and KES 500,000 each in damages.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimants were public officers appointed by the Public Service Commission
Yes - letters of appointment, confirmation and related correspondence confirmed they were public officers in the Kenya Meteorological Department, and the Respondent admitted this in submissions despite a blanket denial in its defence
The Claimants produced appointment letters, confirmation letters, re-alignment/upgrades and certificates. The defence denied the averments wholesale but its written submissions admitted the Claimants were duly appointed public officers. The court accepted the documents and the admission as establishing public office.
Whether the retrenchment/early retirement was wrongful and unlawful
Yes - the purported early retirement was in substance a redundancy which did not comply with Section 16A of the repealed Employment Act or Regulation 20 of the Public Service Commission Regulations
The notification letters did not disclose reasons, selection criteria, notice or severance as required. The Respondent filed no documents proving due process beyond payment vouchers. It then recruited 32 trainees to fill the vacated positions, contradicting the claim that offices were abolished. The PS acted outside section 107 of the former Constitution, which vested appointment and removal powers in the PSC.
Whether the employer was obliged to give reasons and a hearing before 2007
The Ezekiel Nyangoya Okemwa position (employers could terminate at will pre-2007) was held irrelevant because the public service was still bound by constitutional natural justice and its own regulations
While the old employment law allowed termination at will, the former Constitution espoused natural justice for administrative bodies, and public service regulations and policies specifically governed termination and retrenchment, including Regulation 20 and the Sensitization Manual on Retrenchment.
What remedies flow from the unlawful retrenchment
Severance at 15 days' pay per completed year, one month's salary in lieu of notice, three months' gross salary as compensation, and KES 500,000 exemplary damages per Claimant; reinstatement refused
Following the Ishmael Omula Egala preliminary decree on identical facts, the court adopted the same remedial scheme but declined reinstatement, instead awarding exemplary damages to compensate for the PSC's failure to reinstate the Claimants for over seven years and the suffering in that period.
Legal principles established
#- Retrenchment in the guise of early retirement on re-organisation or abolition of office is in substance redundancy and must comply with statutory redundancy requirements
- Even before the Employment Act, 2007, public service terminations were governed by regulations, policies and constitutional principles of natural justice
- General damages are not awardable for breach of contract; compensation for wrongful termination is measured by notice periods and statutory entitlements
Court orders
#- 1.Award of severance pay to each Claimant at the rate of 15 days of service for each complete year of service
- 2.Award of one month's salary in lieu of notice to each Claimant
- 3.Award of three months' gross salary as compensation for the unlawful and wrongful retrenchment to each Claimant
- 4.Award of exemplary damages of KES 500,000.00 to each Claimant
- 5.Payment per Schedule 1 - Award attached to the judgment
- 6.Costs of the suit to the Claimants
- 7.Interest at court rates from the date of judgment until payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court Act, 2014 (first-instance employment claim against the Attorney General under the Government Proceedings Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paschal Akong’o Sihudu & 34 others v Attorney General [2020] KEELRC 531 (KLR)", Case Analysis (2020). Cause No 841 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/531/eng@2020-08-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.