Kosgei v National Industrial Training Authority & another; Cabinet Secretary Ministry of Labour and Social Services (Interested Party) (Petition 70 of 2019) [2020] KEELRC 543 (KLR)
The bottom line
#A Kenyan court ruled that reversing a board's decision to renew an employee's contract without giving him a hearing was unlawful and awarded him Kshs. 27.6 million.
What this practically means
#Executive summary
#Key legal issues
#Validity of the revocation of the renewal resolution
The revocation was invalid: the Board had resolved on 19th March 2019 to renew the contract, the Systems Audit Report had in fact been tabled and considered, and the other audit reports relied on post-dated the revocation and were never put to the petitioner
The minutes of the 63rd Special Meeting show the Systems Audit Report was tabled as an agenda item and the Board unanimously directed the meeting to proceed without it, relying on the SCAC evaluation alone. The reports later cited to justify reversal were dated May 2019, after the decision, and were never presented to the petitioner for response. The 10th April 2019 letter was issued without Board or Minister authority, making it ultra vires and a nullity.
Violation of fair administrative action and fair hearing
The respondents and Interested Party violated Articles 47, 50 and 236 of the Constitution and Section 4 of the Fair Administrative Action Act by relying on reports never disclosed to the petitioner and by giving no reasons for the reversal
Section 4(3) of the Fair Administrative Action Act requires prior notice, an opportunity to be heard, and disclosure of materials to be relied on before adverse administrative action. The petitioner was never given the new reports or a chance to respond before the Board reversed the renewal. The court applied Robert Muriithi Ndegwa and JSC v Gladys Boss Shollei on Article 50(1) fair-hearing guarantees in administrative and disciplinary contexts.
Legitimate expectation
The petitioner established that the respondents and the Interested Party violated his legitimate expectation, which arose from the Board's communicated resolution to renew his contract
Applying the two-step legitimate-expectation test and the South African requirements in National Director of Public Prosecutions v Philips, the Board's resolution, communicated personally with congratulations by the Chairman, was a clear, lawful representation inducing a reasonable expectation. Board members' emails disapproving the Chairman's unilateral action were uncontroverted. Section 7(2)(m) of the Fair Administrative Action Act permits review of actions violating legitimate expectation.
Appropriate remedies
Instead of enforcing the renewal, the court awarded general damages of Kshs. 27,600,000 as the alternative relief sought
Although the Board's resolution would ordinarily be enforced, the court weighed the inharmonious relationship between the petitioner and the Chairman who choreographed the revocation, the over one year elapsed, and the public interest. The petitioner was denied the terminal-leave exit process contemplated by the circular, justifying substantial general damages for violations of Articles 41, 47, 50 and 236 and breach of legitimate expectation.
Legal principles established
#- Where an administrative organ has made a decision favourable to a person, any review of that decision to his detriment requires prior notice and an opportunity to respond under Section 4 of the Fair Administrative Action Act
- Once a Board lawfully resolves to renew a fixed-term contract, it has no capacity to reverse that resolution; the only lawful route thereafter is removal through due process
- A letter purporting to treat a contract as expired without the authority of the Board or the Minister is ultra vires and a nullity
Court orders
#- 1.A declaration (impliedly granted by the findings) that the respondents' and Interested Party's actions in rescinding and declining to renew the petitioner's contract were unfair, unlawful and in breach of his constitutional rights under Articles 41, 47, 50 and 236 of the Constitution and the legitimate expectation of the petitioner
- 2.General damages awarded to the petitioner in the sum of Kshs. 27,600,000 for violation of constitutional rights, breach of legitimate expectation and breach of the values and principles of public service under Article 232
- 3.The 2nd respondent (Dr. Kamau Gachigi) to personally bear the costs of the petition
- Jurisdiction invoked
- Constitution of Kenya, 2010 - Employment and Labour Relations Court jurisdiction under Article 162(2) (jurisdiction not expressly stated in judgment); judgment rendered via COVID-19 directions under Article 159(2)(d) and Article 48
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kosgei v National Industrial Training Authority & another; Cabinet Secretary Ministry of Labour and Social Services (Interested Party) (Petition 70 of 2019) [2020] KEELRC 543 (KLR)", Case Analysis (2020). Petition No 70 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/543/eng@2020-08-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.