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ELRCPartially AllowedPetition dated May 3, 2021 (filed May 12, 2021)· [2022] KEELRC 1371 (KLR)

Guyo v Commandant Kenya Prisons Staff Training College & 3 others (Petition E074 of 2021) [2022] KEELRC 1371 (KLR)

Employment and Labour Relations Court
14 July 2022
3,386 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that dismissing a trainee over a criminal charge without a hearing was unlawful, reinstating him.

What this practically means

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Executive summary

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The petitioner, a Kenyan citizen undergoing training at the Kenya Prisons Staff Training College in Ruiru as part of a programme with Kenyatta University, was arrested in February 2018 after a prisons officer allegedly found two rolls of bhang in his box. He was charged before the Thika magistrates' court with possession of narcotics but was acquitted on May 30, 2019 after the prosecution failed to establish a prima facie case. By then, the 2nd Respondent had terminated his training on July 5, 2018, and the termination was upheld on March 16, 2020 following an appeal. He petitioned the court seeking declarations that his rights to fair administrative action (Article 47), access to justice (Article 48), and dignity and security (Articles 28 and 29) were violated, together with certiorari to quash the termination decisions, mandamus for reinstatement, restoration of his university status, a permanent injunction, and compensation. The court framed two issues: whether the petitioner was unlawfully discontinued from the training, and whether he was entitled to the remedies prayed. Holding that a trainee qualifies as an employee under section 2 of the Employment Act as a learner, the court found the 1st and 2nd Respondents failed to comply with sections 41, 45 and 47 of the Employment Act: no valid reason was given, no fair hearing was accorded, and the criminal charge did not of itself establish gross misconduct. The court declared violations of Articles 28, 29, 47 and 48 and granted certiorari quashing both termination decisions, mandamus for reinstatement, restoration of university status, a permanent injunction, and costs against all Respondents jointly and/or severally. The prayer for compensation was disallowed as not specific.

Key legal issues

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01

Whether the petitioner was an employee within the meaning of the Employment Act

Holding

The petitioner, a trainee at the Kenya Prisons Staff Training College, qualified as an employee as a learner.

Reasoning

Section 2 of the Employment Act defines an employee as a person employed for wages or salary and includes an apprentice and indentured learner. Although the petitioner held an admission letter from Kenyatta University, his training took place at the Prisons Staff Training College in Ruiru. The court held that as a learner he fell within the statutory definition of employee.

p. 5
02

Whether the termination of the petitioner's training was unfair and unconstitutional

Holding

Yes; the 1st and 2nd Respondents failed to give a valid reason and failed to follow sections 41, 45 and 47 of the Employment Act, violating Articles 28, 29, 47 and 48.

Reasoning

The petitioner was terminated on 5th July 2018 after being charged with possession of narcotics, and was only acquitted on 30th May 2019. The court held that arraignment alone does not establish gross misconduct, and that even with an arrested employee the employer must still conduct due process under the Employment Act. The respondents gave no valid reason and no fair hearing, and the appeal decision upholding termination was similarly flawed.

p. 6
03

Burden of proof in unfair termination

Holding

Under section 47(5) of the Employment Act the burden of justifying the grounds for termination rests on the employer; the respondents failed to discharge it.

Reasoning

Section 47(5) places the burden of proving that unfair termination occurred on the employee, but the burden of justifying the grounds for termination rests on the employer. The respondents, who did not even file written submissions, failed to justify the grounds and procedure of the termination, which could not stand under sections 41 and 45.

p. 6
04

Whether the petitioner was entitled to compensation

Holding

No; the prayer for compensation was disallowed for lack of specificity.

Reasoning

Although the petitioner sought consequential orders directing payment of such compensation as the court would determine fit, the court found the prayer for compensation not specific and disallowed it, granting all other declarations and orders sought.

p. 7

Legal principles established

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  • An employer must observe the procedural guarantees of sections 41 and 45 of the Employment Act before terminating an employee, even where the employee faces criminal charges; criminal arraignment does not of itself establish gross misconduct.
  • For a termination to pass the fairness test, there must be both substantive justification and procedural fairness.
  • The right to fair administrative action under Article 47 is wide in scope and encompasses duties to act expeditiously, fairly, lawfully, reasonably and, in specified cases, to give written reasons.

Court orders

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  1. 1.A declaration that the Petitioner's right to fair administrative action guaranteed under Article 47 of the Constitution of Kenya has been contravened
  2. 2.A declaration that the Petitioner's right and fundamental freedom to access to justice guaranteed under Article 48 of the Constitution of Kenya has been contravened
  3. 3.A declaration that the Petitioner's right and fundamental freedom to dignity and security guaranteed under Articles 28 and 29 respectively of the Constitution of Kenya have been contravened
  4. 4.An order of certiorari quashing the decisions of the 2nd Respondent made on 5th July 2018 and subsequently March 16, 2020 terminating the Petitioner from training at the 1st Respondent's school without according him a fair hearing
  5. 5.An order of mandamus for reinstatement of the Petitioner as a trainee of the 1st Respondent
  6. 6.An order effecting the Petitioner to resume his previous status as a student of Kenyatta University, School of Security, Diplomacy & Peace Studies, to enable him complete the remaining units in his Diploma in Criminology and Correctional Sciences
  7. 7.An order of permanent injunction barring the Respondents jointly and/or severally from removing and/or interfering with the Petitioner's training as a prisons officer in any manner not provided for in accordance to the Constitution and/or law
  8. 8.Costs in the Petition to be borne jointly and/or severally by all the Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 28, 29, 47, 47(2), 47(5), 48, 156, 159(2)(d)
  • Employment Actsections 2, 41, 45, 46, 47, 47(5), 51
  • Kenya Prisons Services ActCap 90
  • Narcotic Drugs and Psychotropic Substances (Control) Actsections 3(1), 2(a)
  • Criminal Procedure Actsection 215
  • Civil Procedure Actsection 1B
  • Civil Procedure RulesOrder 21 Rule 1
  • Employment and Labour Relations Actsection 45 (as referred to by the court)

Cases cited (5)

  • Mohamed Sheria & 2 others v Simon Kipkorir Sang & 5 others
    (2018) eKLR
  • Judicial Service Commission of Kenya v Mbalu Mutava & Another
    [2015] eKLR
  • Kenya Human Rights Commission v Non-Governmental Organization Co-ordination Board
    [2016] eKLR
  • Lawrence Onyango Oduori v Kenya Commercial Bank Limited
    Cause No. 1592 of 2010
  • Walter Ogal Onuro v Teachers Service Commission
    Cause No. 955 of 2011
Jurisdiction invoked
Articles 47, 48, 28 and 29 of the Constitution of Kenya, 2010 and the Employment Act, 2007 (supervisory jurisdiction over fair labour practices and fair administrative action)

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, "Guyo v Commandant Kenya Prisons Staff Training College & 3 others (Petition E074 of 2021) [2022] KEELRC 1371 (KLR)", Case Analysis (2022). Petition dated May 3, 2021 (filed May 12, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1371/eng@2022-07-14

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