Samuel Murathi Gatuua v Commissioner General of Prisons & 3 others [2022] KEELRC 1059 (KLR)
The bottom line
#Kenya's Employment Court ruled a prisons officer's dismissal was unfair because the reasons given didn't match the charges and he couldn't call witnesses.
What this practically means
#Executive summary
#Key legal issues
#Evidential weight of the Respondents' replying affidavits
The affidavits of Rotich and Aluda were hearsay since neither participated in the disciplinary proceedings; no minutes of the orderly room proceedings were availed, leaving the Petitioner's averments uncontested
The court found that no copy of the minutes of the orderly room proceedings was availed, and none of the participants swore an affidavit to verify the facts. Both replying affidavits were sworn by officers who did not sit in the proceedings that dismissed the Petitioner, so their contents were hearsay. The Petitioner's account therefore went unrebutted, including his claim that he was denied the right to call witnesses.
Whether the Petitioner was given a fair hearing
The failure to allow the Petitioner to call witnesses and the dismissal on a ground alien to the charge in the Defaulters' Report violated Articles 41 and 47 of the Constitution, Sections 41, 43 and 45 of the Employment Act and Section 4(3) of the Fair Administrative Actions Act
The Respondents did not rebut the Petitioner's averment that he was not allowed to call witnesses. Further, the letter of dismissal cited 'poor records of service' as the reason, which was alien to the Prisons Rules and different from the charge in the Officers Defaulters' Report. The Petitioner was thus dismissed for an offence he was never charged with or given a chance to respond to.
Mismatch between the reason for dismissal and the charge
The reason given in the dismissal letter ('poor records of service') did not correspond to the charge under Rule 124 of the Prisons Rules, rendering the dismissal unlawful and unconstitutional
The dismissal letter cited poor record of service, whereas the Defaulters' Report charged the use of personal violence against another prison officer under C/S124(i)(t) of the Prisons Rules 1977. The court held that if the Defaulters' Report was what was presented to the Petitioner, he was dismissed for an uncharged offence without an opportunity to respond, which vitiates the dismissal.
Legal principles established
#- Where an employer fails to avail minutes of disciplinary proceedings and no participant swears an affidavit verifying the process, the employee's uncontroverted averments stand, and the dismissal process will be found to violate Articles 41 and 47 of the Constitution and Sections 41, 43 and 45 of the Employment Act
- It is unlawful to dismiss an employee on a ground different from the charge with which he was served and required to answer
Court orders
#- 1.Declaration that the dismissal of the Petitioner was in violation of the Constitution, the Employment Act and the Fair Administrative Action Act, and was unlawful and unconstitutional
- 2.Set aside the dismissal and replaced it with an order of normal discharge from the Prisons Service with full benefits
- 3.Petitioner to be paid all salary and/or allowances withheld during interdiction up to the date his appeal for review was dismissed by the Public Service Commission
- 4.Attorney General to pay the Petitioner's costs
- 5.Interest to accrue from the date of judgment
- Jurisdiction invoked
- Articles 41 and 47 of the Constitution of Kenya, 2010 (fair labour practices and fair administrative action), read with the Employment Act and the Fair Administrative Actions Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Murathi Gatuua v Commissioner General of Prisons & 3 others [2022] KEELRC 1059 (KLR)", Case Analysis (2022). Petition (Court file number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1059/eng@2022-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.