Masoud v Kenya Revenue Authority (Cause 906 of 2016) [2022] KEELRC 1393 (KLR)
The bottom line
#Kenya's Employment Court awarded a customs officer Kshs 15 million after finding KRA unfairly sacked him for refusing corruption.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction and time bar
The suit was not time barred; it was filed within the leave period granted by Rika J's ruling of 28 October 2016
The claimant's original HCCC No. 196 of 2000 was dismissed for non-prosecution, but the court granted leave to file a fresh claim. After a petition was struck out, further leave was granted on 28.10.2016 to file within 30 days. The court computed 30 days from 28 October 2016 (as it recorded) as lapsing on or about 28 November 2016, the date the suit was filed, and held the suit was in compliance with the leave order.
Employer liability
The respondent, KRA, is liable only for claims accruing after July 1, 1996 when the claimant was absorbed into its service
The claimant was employed by the East African Customs & Excise Department from 1975 and then the Treasury from 1977. KRA was established as a body corporate under the Kenya Revenue Authority Act, 1995 and employed the claimant by letter dated September 23, 1996 effective July 1, 1996. The court held KRA was an autonomous employer distinct from the claimant's previous employers.
Fairness of the dismissal and retirement in public interest
The termination was unfair and unlawful both procedurally and substantively; the disciplinary process was a sham, whimsical and malicious
The KRA Code of Conduct, incorporated into the contract and prescribed under section 21 of the KRA Act, was mandatory. Its procedures were breached: the charge was issued by the wrong officer, did not specify the offence or penalty, the dismissal issued before the reply deadline, the defence was not considered, the case was not forwarded to the Disciplinary Committee, the appeal was not determined on its grounds, and the dismissal and retirement were imposed by the Deputy Chief Human Resources & Administration Manager without authority, hence ultra vires.
Discrimination under section 82(2) of the Former Constitution
The claimant was discriminated against on account of his political opinion - his steadfast belief in integrity, rule of law and rejection of corruption - and was awarded Kshs 15,000,000
The claimant, a public officer, showed he was targeted and punished while officers who actually facilitated the diversion of transit sugar went unpunished. He was denied equal enjoyment of due process safeguards. The court found inequity, unfairness, mistreatment amounting to discrimination under section 82(2) of the Former Constitution, and in an addendum clarified the discrimination was on account of political opinion under section 82(3). Compensation was compensatory, not punitive.
Remedies
The declarations sought were granted and general compensation of Kshs 15,000,000 awarded for the discrimination; back pay was declined
The court found the prayers for findings of mistreatment, ill motive, unlawful sack and retirement, and destruction of career were established on unrebutted evidence. It awarded Kshs 15,000,000 to vindicate the violation of the freedom from discrimination, considering the repeated mistreatment, anxiety, loss of dignity and destroyed career. Back pay was refused absent reinstatement, and costs followed the claimant's success.
Legal principles established
#- A disciplinary code incorporated into a contract of service and prescribed under statutory regulation-making power is mandatory and binding, not aspirational, and its procedural safeguards must be complied with for a termination to be fair
- Where an employer denies an employee the contractual due process, it cannot claim a valid and fair reason to justify termination
- Public officers who act with integrity against corruption are to be protected and compensated by courts when victimized for their ethical performance
- Back pay depends upon reinstatement; absent reinstatement, a back pay claim fails
Court orders
#- 1.Declaration that the respondent targeted the claimant for continuous mistreatment
- 2.Declaration that the respondent had ill motives on the claimant, intent to settle scores with him, and used him as a scapegoat to cover for misconducts of others
- 3.Declaration that the respondent improperly and unlawfully sacked and subsequently improperly and unlawfully retired the claimant
- 4.Declaration that the respondent destroyed the claimant's career within and outside the customs services
- 5.Declaration that the respondent violated the claimant's rights and freedoms, particularly his fundamental freedom from discrimination under section 82(2) of the Former Constitution of Kenya
- 6.The respondent to pay the claimant Kshs 15,000,000.00 by 01.10.2022 failing which interest to run at court rates from the date of judgment until full payment
- 7.The respondent to pay the claimant's costs of the suit
- 8.By addendum of 29 July 2022, clarification that the discrimination established under section 82(2) of the Former Constitution was on account of the claimant's political opinion within section 82(3), and that the judgment of 22 July 2022 be construed accordingly; the addendum to be reported as a schedule to the judgment for purposes of the National Council for Law Reporting
- Jurisdiction invoked
- Section 12(1) and (2) of the Employment and Labour Relations Court Act, 2011; the suit was a fresh claim filed in the ELRC pursuant to leave granted by Rika J
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Masoud v Kenya Revenue Authority (Cause 906 of 2016) [2022] KEELRC 1393 (KLR)", Case Analysis (2022). ELRC Cause No. 429 of 2015 (transferred from Nairobi High Court Civil Case No. 196 of 2000). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1393/eng@2022-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.