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ELRCPartially AllowedCause No. 575 of 2017 (Consolidated with Cause No. 577 of 2017)· [2020] KEELRC 615 (KLR)

Jacinta Wanjiku Keru & another v Ministry of Interior and Coordination of National Government & 2 others [2020] KEELRC 615 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
24 July 2020
MOMaureen Onyango
4,980 words in judgment
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The bottom line

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What this practically means

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Executive summary

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In this consolidated claim (Cause No. 575 of 2017 with Cause No. 577 of 2017), the claimants, acting in person, challenged their summary dismissal from the Civil Registration and National Registration departments. They had been interdicted on 18th December 2014 following a forensic analysis of M-pesa transactions of Hussein Adan Somo, a SUPKEM representative on the Passport Vetting Committee, on suspicion of receiving inducements to issue passports to unqualified applicants. The MHRMAC recommended their retirement in the public interest, but the Public Service Commission rejected that recommendation and dismissed them for gross misconduct by letters dated 18th March 2016; their appeals were disallowed. The claimants contended the money was friendly loans and that they were never accorded a disciplinary hearing. Maureen Onyango J found the respondents failed to prove a valid reason for dismissal under section 43 of the Employment Act, as their own witnesses could not link the funds to issuance of passports and the MHRMAC minutes conceded the evidence would not sustain a charge in court. Both respondent witnesses confirmed no oral hearing was held; the Court held section 41 of the Employment Act mandatorily required a hearing, and the Fair Administrative Action Act applied since the MHRMAC met after its commencement on 17th June 2015. Reinstatement was refused as beyond the three-year window in section 12(3)(vii) of the Employment and Labour Relations Court Act. The Court substituted the dismissals with retirement in the public interest and awarded each claimant withheld interdiction salary, pay in lieu of notice, 12 months' gross salary as compensation under section 49(4)(e), pension under the Pensions Act, costs, and interest at court rates from the date of judgment. Claims for salaries from interdiction to judgment failed.

Key legal issues

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01

Whether the dismissal of the Claimants was wrongful and unfair

Holding

The dismissal was wrongful: no valid reason was proved and the process breached sections 41, 43 and 45 of the Employment Act and Article 47 of the Constitution.

Reasoning

The respondents' witnesses could not link receipt of M-pesa funds from Hussein Adan to issuance of passports to undeserving applicants; the MHRMAC minutes themselves acknowledged the evidence could not sustain a charge in court. Neither claimant was accorded an oral hearing; the MHRMAC met in their absence and the PSC dismissed them without new evidence after rejecting the recommendation of retirement in public interest. Section 41 of the Employment Act was in force and mandated a hearing.

p. 5
02

Whether the disciplinary process was conducted without a fair hearing

Holding

Yes - the Claimants were denied a fair hearing as only written representations were considered and no oral hearing was held, contrary to section 41 of the Employment Act and Article 47 of the Constitution.

Reasoning

Both respondent witnesses confirmed no oral hearing was held and the Code of Regulations did not provide for one. However, the Employment Act was already in force and mandatorily required an invitation to a hearing. The Fair Administrative Action Act also applied since the MHRMAC meeting occurred on 3rd November 2015, after its commencement on 17th June 2015; in any event Article 47 constitutionalises fair administrative action.

p. 7
03

Whether the Claimants were entitled to reinstatement and the reliefs sought

Holding

Reinstatement was refused as barred by the three-year limitation in section 12(3)(vii) of the Employment and Labour Relations Court Act; dismissal was substituted with retirement in public interest, plus withheld salary, notice pay, 12 months' compensation and pension.

Reasoning

Given long service of 37 years with clean records and the absence of any proved misconduct, the Court substituted summary dismissal with retirement in public interest as recommended by MHRMAC. Compensation of 12 months' gross salary was awarded under section 49(4)(e) of the Employment Act. Claims for salaries from interdiction to judgment were refused.

p. 7

Legal principles established

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  • Section 41 of the Employment Act mandatorily requires an employee to be invited to and heard at a disciplinary hearing before dismissal on grounds of misconduct, even where the applicable public service regulations do not provide for an oral hearing.
  • A public employer cannot dismiss an employee on grounds different from those recommended (retirement in public interest) without new evidence or hearing the employee.
  • The Employment Act binds the Government and its provisions on fair procedure are minimum terms that cannot be derogated from.
  • A court may order reinstatement only within three years of termination.

Court orders

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  1. 1.Summary dismissal of each Claimant reduced to retirement in public interest
  2. 2.Jacinta Wanjiku Keru: salary withheld during interdiction Kshs.344,100 (22,490 x 15)
  3. 3.Jacinta Wanjiku Keru: pay in lieu of notice Kshs.71,880
  4. 4.Jacinta Wanjiku Keru: compensation of 12 months' gross salary Kshs.862,560; total Kshs.1,278,540
  5. 5.Margaret Adhiambo Obara: salary withheld during interdiction Kshs.297,000 (19,800 x 15)
  6. 6.Margaret Adhiambo Obara: pay in lieu of notice Kshs.65,600
  7. 7.Margaret Adhiambo Obara: compensation Kshs.787,220; total Kshs.1,149,800
  8. 8.Pension to be paid according to the Pensions Act
  9. 9.Costs to the Claimants
  10. 10.Interest at court rates from the date of judgment

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Articles 159(2)(d), 48
  • Employment ActSections 3(3), 3(6), 26, 41, 42(1), 43, 44(3), 44(4)(c) and (g), 45, 47(5), 49(4)(e)
  • Employment ActSection 12 (three-year limitation referred to by Claimants)
  • Employment and Labour Relations Court ActSection 12(3)(vii)
  • Fair Administrative Action Act
  • Public Service Commission Regulations, 2005Regulations 22(1)(b), 25(1), 28, 35
  • Public Service Commission Act
  • Pensions ActSection 5
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1
  • Public Service Disciplinary Manual (May 2016)

Cases cited (7)

  • Naqvi Syed Qmar v Paramount Bank Limited and Another
    [2015] eKLR
  • Attorney General & another v Crispinus Ngayo Musundi
    [2017] eKLR
  • R v Immigration Appeal Tribunal ex-parte Jones
    [1988] 1 WLR 477, 481
  • Jasbir Rai & 3 Others v Tarlochan Singh & 4 Others
    [2013] eKLR
  • Kenya Airways Limited v Aviation and Allied Workers Union Kenya & 3 Others
    [2014] eKLR
  • Felisina Wanjira Ndwiga v Public Service Commission & The Hon. Attorney General
    Judicial Review No. 15 of 2016
  • Fredrick Odhiambo Walukwe v Cabinet Secretary, Ministry of Interior and Co-ordination of National Government & 2 Others
    Cause No. 614 of 2015
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes under the Employment and Labour Relations Court Act and Article 162(2) of the Constitution (invoked implicitly through the Court's constitution); reliefs framed under the Employment Act and Article 47 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Jacinta Wanjiku Keru & another v Ministry of Interior and Coordination of National Government & 2 others [2020] KEELRC 615 (KLR)", Case Analysis (2020). Cause No. 575 of 2017 (Consolidated with Cause No. 577 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/615/eng@2020-07-24

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