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ELRCStruck OutConstitutional Petition dated 30th July, 2021· [2022] KEELRC 4133 (KLR)

Wako v Ministry of Interior and Coordination of National Government (Directorate of Immigration and Registration of Persons & 2 others (Petition E006 of 2021) [2022] KEELRC 4133 (KLR)

Employment and Labour Relations Court
28 September 2022
DMD.K. Njagi Marete
3,125 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that employers can dismiss staff over reasonable suspicion of misconduct, but poorly pleaded constitutional petitions will fail.

What this practically means

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Executive summary

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This was a constitutional petition filed at the Employment and Labour Relations Court, Nyeri, by a former public officer employed from 2007 and deployed as a cashier in the civil registration department in Isiolo County. Following an arrest and charge in 2015 for making a document without authority contrary to section 357(a) of the Penal Code, the petitioner suffered a half-salary deduction, was interdicted in September 2015, and was eventually informed of his dismissal in March 2019. His appeal and subsequent review to the Public Service Commission were disallowed. The criminal charges had been withdrawn and he discharged under section 87(a) in February 2018. The petitioner sought declarations that the dismissal was unconstitutional and wrongful, orders of certiorari, reinstatement, withheld salaries and general damages, invoking Articles 41(1), 47 and 236 of the Constitution, section 41 of the Employment Act and section 4 of the Fair Administrative Action Act. The respondents opposed, arguing the petition failed the Anarita Karimi Njeru threshold and that the dismissal was justified under section 44(4)(g) of the Employment Act as gross misconduct. The court framed four issues and held the petition did not meet the constitutional threshold, that the dismissal was lawful gross misconduct warranting termination, and that the petitioner was disentitled to all reliefs. The petition was struck out and the claim dismissed, with each party bearing their own costs.

Key legal issues

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01

Whether the petition met the constitutional petition threshold per Anarita Karimi Njeru v Republic

Holding

It did not; the petitioner pleaded breaches as mere references without tangible evidence tying them to his case

Reasoning

The court held that the petitioner merely referenced constitutional breaches without demonstrating how the cited provisions (Articles 41, 47, 236) were violated in the particular circumstances of his dismissal, failing the precision required by the Anarita Karimi Njeru standard urged by the respondents.

p. 7
02

Whether the termination was wrongful, unfair and unlawful

Holding

No; the dismissal was lawful, founded on gross misconduct under section 44(4)(g) of the Employment Act

Reasoning

The claimant was charged with making a document without authority relating to a birth registration processed by his department. Relying on Thomas Sila Nzivo v Bamburi Cement and the KRA v Gitahi line of cases, the court found reasonable and sufficient grounds for suspicion sufficed, discharge under section 87(a) notwithstanding.

p. 7
03

Whether the petitioner was entitled to the reliefs sought

Holding

No; having lost on unlawful termination, he was disentitled to all reliefs

Reasoning

All heads of relief (declarations, certiorari-type orders, reinstatement, withheld salaries, general damages) were contingent on a finding of unfair termination. That finding having failed, and the petition having failed the constitutional threshold, no relief could issue.

p. 8

Legal principles established

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  • A constitutional petition must plead with precision the constitutional provisions alleged to have been violated and the manner of their violation
  • An employer may summarily dismiss an employee on reasonable and sufficient grounds of suspicion of a criminal offence against the employer's detriment under section 44(4)(g) of the Employment Act

Court orders

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  1. 1.Petition struck out
  2. 2.Claim dismissed
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 41(1)
  • Constitution of KenyaArticle 47(1) and (2)
  • Constitution of KenyaArticle 236
  • Employment ActSections 41, 44(3), 44(4)(g), 45(4) and (5), 46, 51
  • Fair Administrative Action ActSection 4(1)(2)(3) and (4)
  • Penal CodeSections 357(a) and 87(a)

Cases cited (6)

  • Anarita Karimi Njeru v Republic
    (1979) eKLR
  • National Bank of Kenya v Samuel Nguru Mutonya
    (2019) eKLR
  • Janet Nyandiko versus Kenya Commercial Bank Limited
    (2017) eKLR
  • Paramount Bank Limited v Vaqvi Syed Qamara & Another
    (2017) eKLR
  • Thomas Sila Nzivo v Bamburi Cement Limited
    (2014) eKLR
  • Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 Others
    (2019) eKLR
Jurisdiction invoked
Article 41(1), Article 47(1) and (2), and Article 236 of the Constitution; Section 41 of the Employment Act; Section 4(1)(2)(3) and (4) of the Fair Administrative Action Act

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, "Wako v Ministry of Interior and Coordination of National Government (Directorate of Immigration and Registration of Persons & 2 others (Petition E006 of 2021) [2022] KEELRC 4133 (KLR)", Case Analysis (2022). Constitutional Petition dated 30th July, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4133/eng@2022-09-28

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