Joel Ndung’u Bedan v Principal Secretary Ministry of Interior & Coordination of National Government & another [2020] KEELRC 819 (KLR)

Section 9(2) of the FAA Act bars review until internal mechanisms are exhausted, and Cortec Mining requires demonstration of exceptional circumstances. The court held that Article 47 requires administrative action, including appeals to the PSC, to be expedited. Over five months without any communication on the appeal amounted to a bottleneck justifying court access before the appeal's determination.

Under sections 43 and 45(2) of the Employment Act, the employer bears the burden of proving reasons for dismissal. The dismissal letter cited gross misconduct without particulars. The respondents filed no replying affidavit or evidence, leaving the petitioner's denial of the loss of visa sticker booklets and of dishonesty uncontroverted. Allegations advanced only in written submissions were treated as submissions from the bar.

Section 41 of the Employment Act requires the employer to explain reasons and accord the employee a chance to air a defence. Although the petitioner answered a show cause letter on the lost visa booklets, he was dismissed also for giving false information in his response, a charge he was never afforded a chance to answer. The dismissal letter did not notify him of the charges for which he was dismissed, breaching section 41, section 4 of the FAA Act and Article 236.

Having found both substantive and procedural unfairness, the court declared the dismissal wrongful and ordered reinstatement, considering the petitioner's desire for reinstatement, the practicality of reinstatement given the Ministry's countrywide operations, and that three years had not lapsed since dismissal. General damages were refused as not well grounded, and costs were withheld given the continuing employment relationship.