Were v Ministry of Interior and National Administration & 3 others (Petition E049 of 2022) [2023] KEELRC 466 (KLR)
The bottom line
#Kenya's Employment Court ruled a Chief was unfairly removed without a hearing, but refused reinstatement because he hid a past dismissal.
What this practically means
#Executive summary
#Key legal issues
#Whether the petitioner's removal from office was unfair
The removal was unfair because the petitioner was not afforded an opportunity to be heard before discharge
Although the respondents removed the petitioner for non-disclosure of his prior dismissal by the Teachers Service Commission, they did not suggest he was given a hearing. Article 236, Articles 41 and 47, the Fair Administrative Actions Act and sections 35(1), 41, 43 and 45 of the Employment Act guarantee due process before removal. Absent a hearing, the removal was unfair.
Whether reinstatement was an appropriate remedy
Reinstatement declined because the petitioner failed the integrity test through non-disclosure
The petitioner did not make material and relevant disclosure when seeking employment as Chief, having concealed his dismissal from the teaching service. Public office is a trust requiring utmost integrity; the petitioner's dishonesty made reinstatement inappropriate, and compensation was granted instead.
Whether the respondents should pay earned wages
Payment of arrears of salary ordered although a voucher had been produced
The petitioner sought earned wages and the respondents had promised payment, producing a voucher tabulating payments. However, by the time of hearing payment had not been effected, and the court considered it fair to order payment.
Whether the petition route was appropriate
The petition did not meet the threshold for the petition route and costs were denied
Though the court found the removal unfair and awarded remedies, it found the petition did not meet the threshold for approaching the court through the petition route, and consequently denied the petitioner costs.
Legal principles established
#- Public officers are protected from removal from office without due process under Article 236 of the Constitution, reinforced by Articles 41 and 47, the Fair Administrative Actions Act and the Employment Act
- Removal of a public officer without an opportunity to be heard is unfair
- Failure to make material and relevant disclosure when seeking public office constitutes a failure of the integrity test and disqualifies an employee from reinstatement
Court orders
#- 1.Declaration that the removal of the petitioner from office was unfair
- 2.Award of arrears of salary to the petitioner
- 3.Award of the equivalent of 2 months' gross wages as compensation in lieu of reinstatement
- 4.Respondents to compute and pay the awards within 30 days, in default the awards to attract interest at court rates from December 5, 2022
- 5.Petitioner denied costs
- Jurisdiction invoked
- Articles 41, 47 and 236 of the Constitution; Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Were v Ministry of Interior and National Administration & 3 others (Petition E049 of 2022) [2023] KEELRC 466 (KLR)", Case Analysis (2023). Petition of December 5, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/466/eng@2023-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.