Christopher Amasava v Kenya Revenue Authority & another [2021] KEELRC 2036 (KLR)
The bottom line
#A Kenyan court ruled KRA lawfully suspended but unlawfully dismissed an employee facing corruption charges, awarding him a pension declaration but no back salary.
What this practically means
#Executive summary
#Key legal issues
#Retrospective application of the 2010 Constitution and Employment Act 2007
Neither applies to a dismissal effected on 13.9.2006; the former Constitution and repealed Employment Act Cap 226 govern
The cause of action arose before promulgation of the 2010 Constitution and enactment of the Employment Act 2007. Neither Articles 263/264 nor the Sixth Schedule provides retrospective application. Relying on the Supreme Court in Samuel Kamau Macharia, the court held that non-criminal legislation is prima facie prospective, and that a court must not import retrospectivity into forward-looking constitutional language.
Whether disciplinary action could proceed notwithstanding pending criminal proceedings
Yes; Clause 9 of the Code of Conduct is valid and the suspension without pay and dismissal pending criminal charges were permissible
Section 62(4) of ACECA expressly preserves suspension without pay or dismissal under other laws despite the half-pay suspension regime in section 62(1). Criminal and disciplinary processes are distinct, founded on different bodies of law, and neither binds the other; the standards of proof differ. The Court of Appeal in James Mugera Igati confirms the disciplinary process is not tied to the criminal process.
Whether the suspension and dismissal were lawful
Suspension without pay was lawful, but the dismissal was unlawful and wrongful
The suspension was grounded in Clauses 6B(iv) and (vi) and 6B(b) of the Code of Conduct, consistent with section 62(4) ACECA. However, the respondent conducted no investigations of its own, denied the petitioner requested information for his defence, and the dismissal letter was signed by the Senior Deputy Commissioner rather than the Commissioner-General as required by Clause 7.9 of the Code and section 11(4) of the KRA Act, with no evidence of a Gazette-noticed delegation.
Validity of the appeal lodged on 13.2.2012
The appeal was time barred and of no consequence
The stay order of 27.9.2006 in Misc. Application No. 493 of 2006 stayed the right of appeal pending the criminal proceedings. The criminal case was withdrawn under section 87A of the Criminal Procedure Code on 11.1.2012, crystallising the right to appeal. The 30-day window under Clause 8(3) of the Code of Conduct expired before the appeal was lodged on 13.2.2012.
Competence of the constitutional claims
The declarations of infringement and unconstitutionality of Clause 9 were dismissed for want of precise pleading
Applying Anarita Karimi Njeru as affirmed in Mumo Matemu, a party seeking constitutional redress must plead with reasonable precision the provision infringed and the manner of infringement. The court found the petition did not meet that threshold for those heads, though it proceeded to grant declaratory relief on the unlawfulness of the dismissal and pension entitlement.
Legal principles established
#- Statutes are presumed prospective and not applied retrospectively unless expressly provided; the 2010 Constitution and Employment Act 2007 do not apply to a 2006 dismissal
- Section 62(4) ACECA preserves employers' disciplinary powers under other legal regimes, so Clause 9 of the KRA Code of Conduct is not inconsistent with ACECA
- Criminal and disciplinary processes are distinct, with different standards of proof, and neither binds the other
- An employer must establish alleged gross misconduct on a balance of probability through its own investigations before summarily dismissing an employee
- A dismissal letter signed by an officer without delegated power under section 11(4) of the Kenya Revenue Authority Act is unlawful
- Constitutional claims must be pleaded with reasonable precision as to the provision infringed and the manner of infringement
Court orders
#- 1.A declaration that the Petitioner's dismissal vide the letter dated 13.9.2006 was irregular and unlawful.
- 2.A declaration that the Petitioner is entitled to his pension for the years worked in the public service with the respondent less the amount paid after the dismissal.
- 3.Dismissal of the claims that the Petitioner's right to fair employment practices was infringed and that Clause 9 of the Code of Conduct is unconstitutional for lack of precise pleading.
- 4.Dismissal of the claim for salary, allowances and benefits of Kshs. 12,217,848 from May 2006 to December 2015 for lack of legal or contractual basis.
- 5.Dismissal of the general prayer for damages to be assessed by the Court as vague.
- 6.Each party to bear its own costs.
- Jurisdiction invoked
- Article 22(1) of the Constitution (petition invoked by the Petitioner); Article 23 redress under the former Constitution, the cause of action predating the 2010 Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Christopher Amasava v Kenya Revenue Authority & another [2021] KEELRC 2036 (KLR)", Case Analysis (2021). Petition No 34 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2036/eng@2021-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.