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ELRCPartially AllowedELRC Cause No. 429 of 2015 (transferred from Nairobi High Court Civil Case No. 196 of 2000)· [2022] KEELRC 1393 (KLR)

Masoud v Kenya Revenue Authority (Cause 906 of 2016) [2022] KEELRC 1393 (KLR)

Employment and Labour Relations Court of Kenya
22 July 2022
10,624 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~42 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court awarded a customs officer Kshs 15 million after finding KRA unfairly sacked him for refusing corruption.

What this practically means

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Executive summary

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The claimant, employed in customs service from 1975 and absorbed into the Kenya Revenue Authority on July 1, 1996, was summarily dismissed on September 28, 1998 over misplaced transit security bonds relating to a diverted consignment of 160,000 bags of Brazilian sugar. Days before his judicial review application could be heard, the respondent rescinded the dismissal and instead retired him in the public interest on May 14, 1999. The claimant, acting in person, sued seeking declarations of continuous mistreatment, ill motive, unlawful sack and retirement, destruction of career, discrimination, and compensation including back pay. The respondent denied liability, pleading it was a distinct entity from the Treasury and liable only for its own period of employment. The court found the suit was not time barred, being filed within the leave granted by Rika J. It held KRA liable only for the post-July 1996 period. The court found the disciplinary process breached the mandatory KRA Code of Conduct: the charge was irregular, the dismissal preceded the reply deadline, the defence was pre-judged by the Commissioner General's endorsement, and the dismissal and retirement were imposed by an officer without authority, hence ultra vires. The termination was therefore unfair and unlawful. The claimant established discrimination under section 82(2) of the Former Constitution, targeted for performing his duties with integrity while culpable officers went unpunished; an addendum clarified the discrimination was on account of political opinion under section 82(3). The court granted all declarations, awarded Kshs 15,000,000 as compensatory damages payable by October 1, 2022, with interest at court rates thereafter, and awarded the claimant costs. Back pay was refused for want of reinstatement.

Key legal issues

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01

Jurisdiction and time bar

Holding

The suit was not time barred; it was filed within the leave period granted by Rika J's ruling of 28 October 2016

Reasoning

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.

p. 18
02

Employer liability

Holding

The respondent, KRA, is liable only for claims accruing after July 1, 1996 when the claimant was absorbed into its service

Reasoning

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.

p. 18
03

Fairness of the dismissal and retirement in public interest

Holding

The termination was unfair and unlawful both procedurally and substantively; the disciplinary process was a sham, whimsical and malicious

Reasoning

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.

p. 20
04

Discrimination under section 82(2) of the Former Constitution

Holding

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

Reasoning

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.

p. 5
05

Remedies

Holding

The declarations sought were granted and general compensation of Kshs 15,000,000 awarded for the discrimination; back pay was declined

Reasoning

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.

p. 23

Legal principles established

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  • 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

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  1. 1.Declaration that the respondent targeted the claimant for continuous mistreatment
  2. 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. 3.Declaration that the respondent improperly and unlawfully sacked and subsequently improperly and unlawfully retired the claimant
  4. 4.Declaration that the respondent destroyed the claimant's career within and outside the customs services
  5. 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. 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. 7.The respondent to pay the claimant's costs of the suit
  8. 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

Authorities

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Legislation

  • Former Constitution of Kenya (Constitution of Kenya, 1969)section 82(2)
  • Former Constitution of Kenya (Constitution of Kenya, 1969)section 82(3)
  • Kenya Revenue Authority Act, 1995 cap 469section 21
  • Kenya Revenue Authority Act, 1995 cap 469section 13(2)
  • Customs and Excise Act, 1978 (Cap 472)sections 12(1)(a) and (2), 14(2), 16(2), 26(1)(f), 27(1) and (2), 34(2), (5), (6), 35(2), 72(1), 122, 127, 169(2), 185(d), 187(a) and (b), 196(a), (b), (c), (f), (g), 200(2) and (5), 201(2), 203(1) (as pleaded by claimant); sections 194, 202, 212(1) (as referenced in evidence)
  • Employment Act, 1976 cap 224 (now repealed)section 40(1) and (2)(b)(i)
  • Employment and Labour Relations Court Act, 2011section 12(1) and (2)
  • Industrial Court (Procedure) Rules 2010rule 4
  • Employment and Labour Relations Court (Procedure) Rules, 2016rule 34

Cases cited (1)

  • Munir Abubakar Masoud v Commissioner of Customs & 3 others [2016]eKLR (ELRC Petition No 7 of 2015, Mombasa)
    [2016]eKLR
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

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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, "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.