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ELRCDismissedNot stated in judgment· [2020] KEELRC 1500 (KLR)

Alex Khanga Nyapolo v Attorney General for Ministry of Finance & another [2020] KEELRC 1500 (KLR)

Employment and Labour Relations Court
6 March 2020
MOMAUREEN ONYANGO
3,615 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a public officer's unfair dismissal claim because his own letters admitted financial misconduct, and the older law required no oral hearing.

What this practically means

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Executive summary

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The Claimant, formerly District Accountant at Gucha District Treasury, was summarily dismissed by letter dated 10th April 2008 with effect from 2nd October 2007, following allegations that he illegally and irregularly advanced imprests to himself and other officers totalling Kshs.450,100/=. He sued the Attorney General on behalf of the Public Service Commission and the Accountant General's Department, seeking declarations that the dismissal was wrong, unfair, unlawful and excessively harsh, reinstatement with back salaries, or in the alternative, normal termination with terminal benefits, lump sum pension/gratuity and monthly pension, plus costs. The Respondents defended the dismissal as lawful and in accordance with the Code of Regulations, noting a prior interdiction in 2002 and that the Claimant's case was considered by the Ministerial Human Resource Management Advisory Committee. The matter proceeded by written submissions only, after the Claimant suffered a stroke; the Respondents repeatedly failed to file submissions despite several opportunities. The court found the facts uncontested: the Claimant, in his letters of 15th October 2007 and 5th May 2008, expressly admitted advancing imprests irregularly and sought pardon. The court held the Respondent had a valid reason to dismiss him for admitted gross misconduct. It further held the Employment Act, 2007, including sections 41, 43 and 45, did not apply because it came into force on 2nd June 2008, after the dismissal; under the repealed Employment Act and the applicable Code of Regulations, a show cause letter and the Claimant's written admission sufficed. The dismissal was found regular. The entire claim was dismissed with no orders as to costs.

Key legal issues

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01

Whether the Respondent had a valid and fair reason to dismiss the Claimant

Holding

Yes - the Claimant admitted in his letters of 15th October 2007 and 5th May 2008 that he advanced imprests irregularly and sought pardon, amounting to an express admission of gross misconduct

Reasoning

The court examined the Claimant's own letters responding to the show cause and appealing the dismissal. In both, he admitted giving out imprests, admitted they were not surrendered, and sought forgiveness. The court held these were express admissions that he was not following regulations, giving the Respondent a valid reason to take disciplinary action and dismiss him for gross misconduct.

p. 6
02

Whether the Claimant was denied a fair hearing contrary to section 41 of the Employment Act, 2007

Holding

No - the Employment Act, 2007 came into force on 2nd June 2008, after the dismissal of 10th April 2008; under the repealed Act there was no hearing requirement, and the Claimant was issued and answered a show cause letter

Reasoning

The court held the Act had prospective effect and did not govern a dismissal that preceded its commencement. Under the repealed Employment Act and the Code of Regulations applicable to Public Service Commission employees, a show cause process was sufficient. Since the Claimant admitted the charges in his response, there was no reason to subject him to any further disciplinary process. The dismissal was therefore regular.

p. 6

Legal principles established

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  • Where the repealed Employment Act applied (before 2nd June 2008), there was no requirement for an oral hearing before dismissal; a show cause letter with an admission of the charges sufficed
  • An employee's written admission of the charges against him removes the need for further disciplinary process and establishes a valid reason for dismissal for gross misconduct

Court orders

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  1. 1.The entire claim is dismissed
  2. 2.No orders for costs

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 45
  • Constitution of Kenya, 2010Article 47
  • Public Service Commission Actnot specified
  • Public Service Code of Regulations (Code of Regulations)not specified

Cases cited (2)

  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • International Planned Parenthood Federation v Pamela Ebot Arrey Effiom
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes; claim for unfair and unlawful dismissal

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, "Alex Khanga Nyapolo v Attorney General for Ministry of Finance & another [2020] KEELRC 1500 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1500/eng@2020-03-06

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