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ELRCPartially AllowedPetition No 191 of 2019· [2021] KEELRC 1056 (KLR)

Kusow Billow Issack v Ministry of Interior and Coordination of National Government & 3 others [2021] KEELRC 1056 (KLR)

Employment and Labour Relations Court
19 August 2021
OMOnesmus N. Makau
5,226 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled an Assistant Chief who worked over two years unpaid had his constitutional dignity violated and is owed salary plus Kshs 1 million.

What this practically means

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Executive summary

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The Petitioner, appointed Assistant Chief for Mansabubu Sub-Location, Fafi Sub-County by letter dated 11.10.2016, served for two years and four months without receiving any salary or allowances until his appointment was terminated by letter dated 27.11.2018 after the 2nd Respondent (Public Service Commission) declined to approve his re-engagement, having discovered his prior service with the GSU ending in dismissal for desertion, which he had not disclosed. He petitioned for declarations of violations of Articles 25, 27, 28, 41, 47 and 50, reinstatement, unpaid salaries, damages and injunction. The Respondents contended the petition was an abuse of process as a disguised employment dispute, that the Petitioner was guilty of material non-disclosure justifying refusal to re-engage him, and that reinstatement was not merited. The Court held the petition competent under the Anarita Karimi Njeru threshold since labour rights are in the Bill of Rights. It found his Article 28 right to human dignity violated by the prolonged withholding of salary, amounting to inhuman treatment akin to servitude. Although the non-disclosure furnished a valid reason and breached Chapter Six integrity requirements, the termination without a hearing violated Articles 47 and 50 and the freedom from discrimination under Article 27. Reinstatement was refused as impracticable given the Petitioner's contribution to the termination. The Court awarded his unpaid salary and allowances for the period 11.10.2016 to 27.11.2018 to be assessed and paid by the Respondents, and Kshs. 1,000,000 in constitutional damages, with costs and interest, subject to statutory deductions; all other prayers were declined.

Key legal issues

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01

Competence of the petition as a constitutional litigation

Holding

The petition met the competence threshold because the Petitioner pleaded with precision the constitutional provisions breached and the manner of breach

Reasoning

The Respondents argued the dispute should have been a ordinary employment suit under sections 41-49 of the Employment Act. The Court held that labour rights are included in the Bill of Rights, and once a petitioner pleads with precision the constitutional provisions and manner of breach, the duality of procedure for accessing the ELRC permits a petition. Article 22(1) guarantees the right to institute proceedings for violations of Bill of Rights freedoms.

p. 4
02

Violation of the right to human dignity through non-payment of salary

Holding

The Petitioner's Article 28 right to human dignity was violated by withholding salary for over two years of service

Reasoning

The Respondents admitted the Petitioner worked from 26.10.2016 to 27.11.2018 without being added to the IPPD payroll and without pay. The Court found this subjected him to inhuman treatment akin to slavery or servitude, denying him the wherewithal for a dignified living for himself and his family, contrary to Article 28 and the principle of just and favourable remuneration.

p. 5
03

Violation of fair administrative action and fair hearing in the termination

Holding

The termination without a hearing violated Articles 47 and 50, and Article 41, despite the Petitioner's non-disclosure

Reasoning

Termination of public employment is administrative action requiring a valid reason and fair procedure under section 4 of the Fair Administrative Action Act, section 41 of the Employment Act and PSC Regulations. Although the non-disclosure gave a valid reason for the 2nd Respondent's refusal to re-engage, no hearing was accorded before the termination decision, so the process was unfair and violated Articles 27, 41, 47 and 50.

p. 6
04

Reinstatement and remedies

Holding

Reinstatement refused as impracticable; salary and allowances for the period worked plus Kshs. 1,000,000 constitutional damages awarded

Reasoning

Under section 49(4) of the Employment Act the Court considers the employee's contribution to the termination and practicability of reinstatement. The Petitioner's concealment was dishonesty incompatible with public service under Chapter Six, so reinstatement was impracticable. He was entitled to salary for 2 years 4 months under Article 41(2)(a) and section 17 of the Employment Act; damages were assessed by reference to comparable Court of Appeal awards but reduced for his misconduct.

p. 7

Legal principles established

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  • An employee who works without pay for a prolonged period is subjected to treatment violating the right to human dignity under Article 28
  • Even where an employee is guilty of non-disclosure, the employer must accord a hearing before terminating employment; natural justice under Articles 47 and 50 must be observed
  • Non-disclosure of prior public service employment and dismissal constitutes misconduct justifying refusal to re-engage, and satisfies the Chapter Six leadership and integrity test requirement

Court orders

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  1. 1.Declarations that the Petitioner's rights under Articles 27, 28, 41, 47 and 50 of the Constitution were violated by the Respondents by failing to pay his salary as it fell due and by dismissing him without a fair hearing
  2. 2.Declaration that the termination of the Petitioner's appointment as Assistant Chief vide the letter dated 27.11.2018 violated his rights under the Constitution
  3. 3.The 1st and 2nd Respondents to assess and pay the Petitioner his withheld salary and allowances for the period 11.10.2016 to 27.11.2018 according to the salary scale at the time of his service
  4. 4.Award of Kshs. 1,000,000 as compensation for the constitutional violations
  5. 5.Costs of the petition to the Petitioner plus interest at court rates from the date of judgment
  6. 6.The financial award to be subject to statutory deductions
  7. 7.All other prayers not expressly granted declined

Authorities

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Legislation

  • Constitution of KenyaArticles 19, 22(1), 23(3) (Universal Declaration reference), 24, 25, 27, 28, 41, 47, 48, 50, 51, 73(2), Chapter Six, 236(b)
  • Employment Actsections 17, 41, 42(1), 44(3) & (4), 45(2)(c), 49(1)(c), 49(3) & (4)
  • Fair Administrative Action Actsection 2, sections 4(1), (2) and (3)
  • Employment and Labour Relations Court Actsection 12, section 12(3)
  • Public Service Human Resource Manual 2016Section D (18) & (20)
  • Human Resource Policies and Procedures Manual 2016section B 14
  • Universal Declaration of Human RightsArticle 23(3)
  • ELRC Procedure RulesRule 28(3)

Cases cited (23)

  • Jonathan Spangler v Centre for African Family Studies (CAFS)
    [2017] eKLR
  • Narok County Government & ano v Richard Bwogo Birir & ano
    [2015] eKLR
  • Loice Otieno v Kenya Commercial Bank
    [2013] eKLR
  • Selvarajan v Race Relations Board
    (1976) 1 All ER 12
  • Kenya Airways Limited v Aviation Allied Workers Union Kenya & 3 Others
    [2016] eKLR
  • Kenya Power & Lighting Company Limited v Aggrey Lukorito Wasike
    [2017] eKLR
  • Judicial Service Commission v Hon. Joseph Riitho Ndururi
    [2021] eKLR
  • Benjamin Langwen v National Environmental Authority
    [2016] eKLR
  • Samuel Nguru Mutonya v National Bank of Kenya Limited
    [2017] eKLR
  • Barbara De Klerk v Cape Union Mart International (PTY) Ltd
    Case No. C620/2011 [2012] ZALCCT 22
  • Minister of Health & ano v New Clicks SA (PTY) Ltd & Others
    2006 (2) SA 311
  • Communication Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others
    [2014] eKLR
  • S v Mhlungu
    1995 (3) SA 867 (CC)
  • Sumayya Athmani Hassan v Paul Masinde Simidi & ano
    [2019] eKLR
  • Sita Steel Rolling Mills Limited v Jubilee Insurance Company Limited
    [2007] eKLR
  • Michael Chege Ndishu v Dedan Kimathi University of Technology
    [2019] eKLR
  • R v British Broadcasting Corporation - Ex Parte Lavelle
    (1983) 1 WLR
  • Republic v Judicial Service Commission Ex-parte Stephen Pareno
    [2004] eKLR
  • R v Anarita Karimi Njeru
  • Kenfreight (EA) Limited V. Benson K. Nguti
    [2016] eKLR
  • Kenfreight (E.A) Limited v. Benson K. Nguti
    [2019] eKLR
  • John Gakuo & ano v County Government of Nairobi & 3 others
    [2018] eKLR
  • Ol Pajeta Ranching Limited v David Wanjau Muhoro
    [2017] eKLR
Jurisdiction invoked
Article 22(1) and 23 of the Constitution; Employment and Labour Relations Court Act (section 12 cited)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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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, "Kusow Billow Issack v Ministry of Interior and Coordination of National Government & 3 others [2021] KEELRC 1056 (KLR)", Case Analysis (2021). Petition No 191 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1056/eng@2021-08-19

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