Nyarwati v Action Africa Help International (Petition E199 of 2021) [2022] KEELRC 1201 (KLR)
The bottom line
#A Kenyan court ruled that firing an employee without a hearing and publishing their dismissal photo in a newspaper violated their rights, awarding over Kshs. 13 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition offended the doctrine of avoidance
The petition was proper because the claims of privacy and dignity infringement cannot be brought in an ordinary memorandum of claim
The Respondent argued the dispute was an ordinary employment matter to be pursued by memorandum of claim, citing authority on the doctrine of avoidance. The court rejected this, holding that allegations of infringement of privacy and dignity under the Constitution cannot be canvassed in an ordinary claim, and noted the Respondent itself engaged with Article 28 in its submissions, thereby conceding the constitutional dimension.
Whether the dismissal was justifiable
The dismissal was unfair and unlawful for want of procedural fairness
The court held that Article 41 of the Constitution and Section 41 of the Employment Act entitle an employee to fair labour practices, including a hearing before dismissal for gross misconduct. No show cause letter was issued, the Petitioner was not summoned to a disciplinary hearing, and his appeal went unanswered. Both procedural and substantive fairness were lacking, rendering the dismissal unfair and unlawful.
Whether publication of the Petitioner's image infringed privacy and dignity
The publication in the Daily Standard infringed the Petitioner's rights to privacy and human dignity
The Respondent justified the publication as standard procedure and a duty to inform the public. The court found no industry practice requiring advertisement of dismissals, noted that such adverts infer criminal conduct by the employee, and held the Respondent could not rely on an amorphous duty to inform the public. Publishing the image without consent infringed Articles 28 and 31.
Whether the Respondent illegally accessed the Petitioner's bank statements
No violation found on this limb as the Petitioner did not prove the alleged access
The Respondent denied accessing the Petitioner's Equity Bank statements, asserting the fraud had been noticed by its Regional Finance Coordinator and confirmed by a whistle blower, with the Petitioner's own admission. The court did not make a finding of violation on this head in the final orders; only the publication was declared an infringement.
Whether the Petitioner was entitled to a permanent injunction
Injunction refused for failure to meet the Giella v Cassman Brown threshold
The court applied the classic injunction test, finding the Petitioner had not demonstrated the high bar required. The Respondent had also stated it had no further intent to publish or access the accounts, rendering the injunctive relief unnecessary. The injunction prayers were accordingly declined.
Legal principles established
#- An employee is entitled to be heard before dismissal, even where the alleged ground is gross misconduct; a dismissal without a show cause letter, disciplinary hearing and chance to respond is unfair and unlawful
- There is no industry practice requiring advertisement of an employee's dismissal to the public; such publication cannot be justified under a supposed duty to inform the public
- Where rights such as privacy and dignity under Articles 28 and 31 are alleged to be infringed, a constitutional petition (not an ordinary memorandum of claim) is the proper vehicle
Court orders
#- 1.A declaration that by publishing the Petitioner's image in The Standard Newspaper on 24th November 2021 the Respondent infringed his right to privacy and human dignity
- 2.Compensation of Kshs. 5,000,000/- for the breach of privacy and human dignity and tarnishing the Petitioner's name
- 3.One month's salary in lieu of notice – Kshs. 368,047/-
- 4.Unpaid salary for 22 days worked in November 2021 – Kshs. 269,901.13
- 5.25 days leave balance – Kshs. 306,705.83
- 6.Pension 15% x 368,047 x 12 months x 5 years – Kshs. 3,312,423/-
- 7.12 months' compensation for wrongful loss of employment – Kshs. 4,416,564/-
- 8.Interest at Court rates on the sums in (ii) to (vii) from date of termination till payment in full
- 9.Costs of the Petition
- Jurisdiction invoked
- Article 41 of the Constitution; Section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyarwati v Action Africa Help International (Petition E199 of 2021) [2022] KEELRC 1201 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1201/eng@2022-06-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.