Obuya Bagaka v Kenya School of Government [2021] KEELRC 2271 (KLR)
The bottom line
#Kenya's Employment Court ruled that a public employer who denies an accused employee the evidence against him and biases the panel must pay compensation and constitutional damages.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC to entertain a constitutional petition raising employment grievances
The Court has jurisdiction; the Employment Act and Fair Administrative Action Act do not adequately remedy constitutional breaches, so the Petitioner may plead constitutional violations directly.
Relying on Samuel Kamau Macharia, the Court accepted that jurisdiction flows from the Constitution or statute. The Respondent argued constitutional avoidance per Sumayya Athman Hassan and Communications Commission. The Court distinguished those authorities, holding that Articles 41 and 47 rights have different weighting and remedies from Employment Act remedies, whose maximum is 12 months' salary, and that there is no statutory provision for damages for constitutional breaches. The Petition was therefore rightly before the Court.
Whether the termination was for valid reasons and by fair procedure
The dismissal was unfair and unjustified: no valid reasons were proved and the procedure was flawed.
The Respondent produced no WhatsApp messages or forensic audit despite the Petitioner's offer; utterances at a staff retreat could not ground dismissal; Rw1 himself disavowed the consultancy accusation and no witness was called on the 'school is broke' claim. Procedurally, the Petitioner was interdicted beyond the 2-month limit, denied requested documents and evidence, heard by an improperly constituted panel, and Nura Mohammed acted as accuser, author of interdiction and dismissal letters, and committee member.
Whether constitutional rights under Articles 41 and 47 were violated
Yes - having found breach of the Fair Administrative Action Act, Article 47 was breached, and the unfair process breached Article 41 fair labour practices.
The Court held that the flawed disciplinary process - denial of evidence relied upon, bias of a panel member, absence of an impartial appeal, and excessive interdiction - violated the right to fair administrative action and fair labour practices, entitling the Petitioner to declarations and constitutional damages of Kshs. 3 million.
The cross-petition for rent and utilities
The cross-petition succeeds to the extent of Kshs. 556,069, which the Petitioner admitted was owing and payable.
The Respondent claimed accrued rent and water charges for the staff house occupied after dismissal. The Petitioner's defence was that payment was only possible through a check-off system since he was off the payroll. The Court treated this as an admission of the debt and ordered payment, and granted the Respondent vacant possession of the house within one month.
Legal principles established
#- An employer must prove valid and existing reasons for termination, and where it fails to do so the termination is unfair under sections 43 and 45 of the Employment Act
- A litigant may plead constitutional breaches directly where the Employment Act cannot adequately remedy them; constitutional labour rights have different weighting and remedies than statutory unfair-termination remedies
- Administrative action taken by a person who is both accuser and adjudicator, without authority and without furnishing evidence relied upon, is unfair and reviewable under the Fair Administrative Action Act
Court orders
#- 1.10 months' salary as compensation for the unfair dismissal
- 2.A declaration that the Respondent's action and conduct amounts to denial and violation of the Petitioner's fundamental rights and freedoms under Articles 41 and 47 of the Constitution
- 3.A declaration that the Respondent's actions are in breach of the Fair Administrative Action Act, its own Terms and Conditions of Service Manual and the rules of natural justice
- 4.Damages of Kshs. 3 million for breach of the Petitioner's constitutional rights
- 5.Back pay from the time of interdiction to the time of dismissal
- 6.Payment of rent of Kshs. 556,069 to the Respondent on the cross-petition
- 7.The Respondent to have vacant possession of its staff house No. KABE CD/2/269 CATEGORY C within one month
- 8.The Respondent to pay costs of the Petition
- Jurisdiction invoked
- Article 162(2) of the Constitution and the Employment and Labour Relations Court Act (employment and labour relations jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Osoro v Nyangena Hospital Ltd (Appeal E028 of 2024) [2025] KEELRC 1277 (KLR)[2025] KEELRC 1277 (KLR)5 May 2025
Cite this brief
#Cite this brief
Caselaw, "Obuya Bagaka v Kenya School of Government [2021] KEELRC 2271 (KLR)", Case Analysis (2021). Petition No. 135 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2271/eng@2021-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.