Muhanji v Kenya Ports Authority (Cause 98B of 2021) [2023] KEELRC 1547 (KLR)
The bottom line
#Kenya's employment court ordered KPA to reinstate an engineer it unfairly dismissed, ruling the dismissal void because the board was improperly constituted.
What this practically means
#Executive summary
#Key legal issues
#Validity of the unilateral redeployment/re-designation
The re-deployment of the Claimant, an Engineer, to the post of Senior Architect without consultation, consent, notice or job description was unfair, unlawful and unjustified, contrary to section 10(5) of the Employment Act.
Section 10(5) of the Employment Act requires an employer, in consultation with the employee, to revise the contract and notify the employee in writing when particulars of employment change. It was common ground the Claimant was not consulted, his consent was not sought and no job description was given. The Respondent's own witness confirmed the redeployment was illegal. The court applied the Court of Appeal decision in Board of Governors Cardinal Otunga High School Mosocho.
Substantive fairness of the summary dismissal
The dismissal was not anchored on any valid reason; the allegations of overpayment were never proved on a balance of probability, and the Respondent's own evidence corroborated the Claimant's explanation.
Under sections 43(1) and 45 of the Employment Act the employer must prove valid reasons for termination. The Claimant showed he never certified payments to Ezgo Ltd; his certified payments to Grand Logistics, Salwa Kenya and Haafah EA were within contract sums, and overpayments arose from certificates by other engineers. RW-1 confirmed this. The Respondent neither exhibited the contracts nor availed the author of the State Department of Works report relied upon.
Procedural fairness of the dismissal
The procedure was unfair: the HR Committee recommended demotion but the full Board, in which five of the six committee members sat, varied that decision and dismissed the Claimant without any appeal.
The disciplinary hearing complied with section 41, but the statutory committee's delegated decision that the Claimant be demoted was varied by the full Board where the committee members formed the majority, depriving the Claimant of any fair appeal. Separately, the Board that dismissed him was improperly constituted: the appointments of Chairman Kibwana and members Ngare and Thorpe had been quashed by the High Court on 27 May 2021 and not stayed until 23 September 2021, rendering the dismissal decision a nullity.
Entitlement to reinstatement
Reinstatement was the appropriate remedy, the dismissal being void and the practicability of reinstatement not validly challenged.
Under section 12(3)(vii) of the ELRC Act and section 49(3)(a) of the Employment Act, the court has power to order reinstatement within three years of dismissal. No overpayment was validly demonstrated against the Claimant, he had a clean disciplinary record since 2008, and the Respondent's claim that his post no longer exists after an organizational review was unsupported by evidence. Reinstatement is discretionary but fitting here.
Legal principles established
#- An employer must consult an employee before revising particulars of employment under section 10(5) of the Employment Act; a unilateral change is illegal, wrongful and unfair.
- The employer bears the burden of justifying the grounds for termination; where unproved, the dismissal is substantively unfair.
- Decisions of a board committee exercising delegated statutory functions are decisions of the board and cannot be varied by the full board except on appeal.
- A decision of a board without a validly appointed chairman and with quashed members is null and void.
Court orders
#- 1.Declared that the Claimant's re-deployment from the position of Senior Works Officer Port Grade HM2 to the position of Senior Architect Grade HM2 was malicious, unlawful and devoid of procedure
- 2.Declared that the Claimant's summary dismissal was wrongful and unfair
- 3.Declared that the Respondent's Board of Directors lacked legal capacity to summarily dismiss the Claimant, and the dismissal was null and void
- 4.Directed the Respondent to reinstate the Claimant to his former position of Senior Works Officer Grade HM2 forthwith, without any loss of benefits, and to be treated in all respects as if his employment had not been terminated
- 5.Awarded the Claimant costs of the suit and interest at Court rates
- Jurisdiction invoked
- Employment and Labour Relations Court Act, section 12(3)(vii); Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muhanji v Kenya Ports Authority (Cause 98B of 2021) [2023] KEELRC 1547 (KLR)", Case Analysis (2023). Cause No 98B of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1547/eng@2023-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.