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ELRCPartially AllowedELRC Cause (Nairobi)· [2022] KEELRC 211 (KLR)

Emy Amwayi Mattakwa v Kenya Revenue Authority [2022] KEELRC 211 (KLR)

Employment and Labour Relations Court
29 March 2022
JRJames Rika
4,744 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled KRA unfairly fired a whistleblower, ordering her re-engagement or 12 months' salary plus costs and interest.

What this practically means

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Executive summary

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The Claimant, employed by the Kenya Revenue Authority and deployed to the Mombasa port, was interdicted on 1st March 2012 over the alleged fraudulent release of nine containers without payment of duty, and criminally charged alongside colleagues. She was heard by a disciplinary committee only in January 2016 - four years after interdiction - and her contract was terminated on 31st August 2018, over two years after the hearing. She claimed she was victimized for whistleblowing, having reported fraudulent container releases and having been bonded as a witness in an earlier criminal case before being joined as an accused in a second case. She sought declaration, reinstatement, compensation, damages and costs. The Respondent maintained that due process was followed and that trust and confidence had broken down. The Court found no valid reasons for termination under Sections 43 and 45 of the Employment Act: the administrative process produced no proof of the allegations, and the Claimant's acquittal on 11th February 2022 confirmed she was a whistleblower who was victimized. Procedure was manifestly unfair, violating Article 47 of the Constitution and Article 236 protection of public officers, and breaching the Respondent's own Code of Conduct requiring conclusion within six months. The discrimination claim failed for lack of evidence of comparators. Reinstatement was time-barred under Section 12(3)(vii) of the ELRC Act, but re-engagement under Section 49(3)(b) of the Employment Act was granted, with an alternative of 12 months' gross salary compensation, three months' notice pay, withheld interdiction salary and full pension. Costs and interest were awarded to the Claimant.

Key legal issues

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01

Valid reason for termination

Holding

Termination was not based on valid reasons under Sections 43 and 45 of the Employment Act; no proof of the allegations was produced administratively and the criminal acquittal confirmed the Claimant was a whistleblower

Reasoning

The disciplinary process yielded no evidence: no container identification marks, no investigation report, no minutes. The Claimant was still a probationer when the offences were allegedly committed, yet was confirmed and commended. The criminal trial acquitted her on 11 February 2022, confirming she was victimized for whistleblowing on fraudulent container releases.

p. 5
02

Procedural fairness

Holding

Procedure was manifestly unfair - four years between interdiction and hearing, and over two years between hearing and termination

Reasoning

Interdiction was in March 2012; the disciplinary hearing was in January 2016; termination came in August 2018. The Code of Conduct required conclusion within 6 months, and the Head of Public Service Guidelines of 24 May 2010 required an expeditious process. This violated Article 47 and Section 41 of the Employment Act.

p. 5
03

Discrimination claim

Holding

Discrimination not proved; the Claimant named comparators but produced no evidence they were reinstated or still in employment

Reasoning

The Claimant merely mentioned names of colleagues without evidence of their reinstatement, stations or continued employment. The Court distinguished victimization for whistleblowing, which it accepted, from discrimination, which requires proof of comparators in the same situation treated differently.

p. 5
04

Remedies - re-engagement as alternative to reinstatement

Holding

Reinstatement time-barred, but re-engagement under Section 49(3)(b) of the Employment Act is available and not subject to that limitation

Reasoning

The Court considered the Claimant's wishes, practicability, her narrow labour market opportunities given her KRA-specific training, her clean conduct as a whistleblower, and the Respondent's public body status. Loss of trust and confidence was not factually established, especially after her acquittal.

p. 6

Legal principles established

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  • Disciplinary proceedings against a public officer must be concluded expeditiously; the employer's own Code of Conduct required conclusion within 6 months
  • Loss of trust and confidence as a ground for termination must be premised on facts
  • Upon acquittal of a public officer in a corruption and economic crimes case, the employer's most reasonable recourse is restoration of the employee

Court orders

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  1. 1.Declared that termination of the Claimant's contract was unfair
  2. 2.The Respondent shall re-engage the Claimant to work comparable to that in which she was employed prior to dismissal, or other suitable work, on the same salary
  3. 3.The Respondent shall pay withheld salary for the period of interdiction [2012-2018]
  4. 4.Alternatively to re-engagement, the Respondent shall pay compensation equivalent to 12 months' gross salary at Kshs. 1,752,000; 3 months' salary in lieu of notice at Kshs. 438,000; withheld salary for the period of interdiction; and full pension
  5. 5.The Claimant shall communicate her option to the Respondent in writing within 14 days of the Judgment
  6. 6.The Respondent shall act on the option communicated within 30 days of receiving the Claimant's communication
  7. 7.Costs to the Claimant
  8. 8.Interest allowed at court rates from the date of Judgment until satisfaction in full

Authorities

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Legislation

  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 236
  • Employment ActSections 41, 43, 45, 49 (incl. 49(3)(b)), 62
  • Employment and Labour Relations Court ActSection 12(3)(vii)
  • Anti-Corruption and Economic Crimes ActSection 62(3)
  • Respondent's Employee Code of Conductinterdiction and disciplinary timelines
  • Guidelines issued by the Head of Public Servicedated 24th May 2010
Jurisdiction invoked
Employment and Labour Relations Court Act, Section 12; Employment Act Sections 41, 43, 45, 49; Articles 47 and 236 of the Constitution

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, "Emy Amwayi Mattakwa v Kenya Revenue Authority [2022] KEELRC 211 (KLR)", Case Analysis (2022). ELRC Cause (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/211/eng@2022-03-29

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