Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in the judgment· [2022] KEELRC 1201 (KLR)

Nyarwati v Action Africa Help International (Petition E199 of 2021) [2022] KEELRC 1201 (KLR)

Employment and Labour Relations Court
15 June 2022
4,560 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

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

#
The Petitioner, formerly Operations Manager of the Respondent since 24th January 2017, petitioned the Employment and Labour Relations Court alleging that his summary dismissal on 22nd November 2021, the Respondent's alleged access of his Equity Bank statements, and the publication of his name and image in the Daily Standard of 24th November 2021 infringed his constitutional rights, including privacy, dignity, fair labour practices and fair administrative action, and claimed terminal dues of Kshs. 9,271,279.19, damages and injunctions. The Respondent, through a Replying Affidavit sworn by Job Githaiga Kamau, contended the dismissal was justified by gross misconduct relating to fraud and procurement irregularities at Kakuma Station, that the petition offended the doctrine of avoidance, and that the publication was standard procedure. The court rejected the doctrine of avoidance objection, holding that privacy and dignity claims cannot be brought in an ordinary memorandum of claim. It found the dismissal unfair for want of a hearing, and held the newspaper publication infringed privacy and dignity since no industry practice requires advertising dismissals. The permanent injunction and exemplary damages were refused. The court awarded a declaration of infringement, Kshs. 5,000,000/- compensation, notice pay, unpaid salary, leave balance, pension, 12 months' compensation for unfair dismissal, interest and costs.

Key legal issues

#
01

Whether the petition offended the doctrine of avoidance

Holding

The petition was proper because the claims of privacy and dignity infringement cannot be brought in an ordinary memorandum of claim

Reasoning

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.

p. 7
02

Whether the dismissal was justifiable

Holding

The dismissal was unfair and unlawful for want of procedural fairness

Reasoning

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.

p. 8
03

Whether publication of the Petitioner's image infringed privacy and dignity

Holding

The publication in the Daily Standard infringed the Petitioner's rights to privacy and human dignity

Reasoning

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.

p. 7
04

Whether the Respondent illegally accessed the Petitioner's bank statements

Holding

No violation found on this limb as the Petitioner did not prove the alleged access

Reasoning

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.

p. 6
05

Whether the Petitioner was entitled to a permanent injunction

Holding

Injunction refused for failure to meet the Giella v Cassman Brown threshold

Reasoning

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.

p. 8

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. 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. 2.Compensation of Kshs. 5,000,000/- for the breach of privacy and human dignity and tarnishing the Petitioner's name
  3. 3.One month's salary in lieu of notice – Kshs. 368,047/-
  4. 4.Unpaid salary for 22 days worked in November 2021 – Kshs. 269,901.13
  5. 5.25 days leave balance – Kshs. 306,705.83
  6. 6.Pension 15% x 368,047 x 12 months x 5 years – Kshs. 3,312,423/-
  7. 7.12 months' compensation for wrongful loss of employment – Kshs. 4,416,564/-
  8. 8.Interest at Court rates on the sums in (ii) to (vii) from date of termination till payment in full
  9. 9.Costs of the Petition

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 19, 20, 21, 22, 23, 24, 25(c), 27, 28, 29(d), 31, 35(1)(b), 41(1), 47, 48, 50, 51
  • Employment Act, 2007Sections 41, 43, 44(3), 44(c), 45, 49, 51
  • Employment and Labour Relations Court ActSection 12
  • Data Protection ActNot specified (referred to as the Data and Privacy Protection Act)
  • Employment and Labour Relations Court (Procedure) RulesNot specified

Cases cited (5)

  • Kenfreight (E.A) Limited v Benson K. Nguti
    [2016] eKLR
  • Communication Commission of Kenya & Others v Royal Media Services Limited & 5 Others
    [2014] eKLR
  • Sumayya Athmani Hassan v Paul Masinde Simidi & Another
    [2019] eKLR
  • Terry Muringo Muchiri v K-Rep Group Limited
    [2021] eKLR
  • Giella v Cassman Brown Co. Ltd
    [1973] EA 358
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.