Karisa v Independent Electoral and Boundaries Commission (Cause 1319 of 2017) [2023] KEELRC 2350 (KLR)
The bottom line
#A Kenyan court ruled IEBC's director was unfairly fired without a proper hearing, awarding him over Kshs.8.9 million and refunds of withheld pay.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was for a valid reason and followed a fair procedure
The termination was unlawful and unfair: no disciplinary committee was constituted, the claimant's request to be heard was ignored, the Notice to Show Cause was vague, and no valid reason was proved.
The claimant responded to the Notice to Show Cause complaining of lack of specifics and requesting audience before a competent organ; the letter was never answered and no disciplinary committee was constituted, contrary to the respondent's own HR Policy Manual (Clauses 10.2.1 and 10.2.3) and Section 41 of the Employment Act. The charges were general and unsubstantiated, failing the Section 43 and 45 burden on the employer. The claimant's later acquittal vindicated him.
Whether the suspension on half pay under the Anti-Corruption and Economic Crimes Act entitled the claimant to a refund upon acquittal
Yes; the withheld half salary and allowances for the 11 months of suspension, and the employer's 15% pension contributions for that period, had to be refunded.
The suspension on half pay was statutory under Section 62(1) of the Anti-Corruption and Economic Crimes Act. Upon the claimant's acquittal by the Anti-Corruption Court on 27/5/2020, the deduction lost its foundation, and since termination had intervened, the respondent had to refund the withheld half salary, allowances and the employer pension contributions for the suspension period.
Whether the claimant was entitled to constitutional and general damages in addition to statutory compensation
No; statutory compensation under Section 49(1)(c) and (4) sufficed. The Court awarded the equivalent of 8 months' salary, taking an egregious view of the respondent's conduct.
Relying on Kenfreight (E.A.) Limited v Benson Nguti, the Court confirmed its compensation jurisdiction under Section 49(1)(c), and, following Pandya Memorial Hospital v Geeta Joshi, declined to award multiple remedies for the same wrongdoing. Considering the claimant's 4 years of diligent service, prolonged suspension on half pay, non-specific charges and vindication by acquittal, 8 months' salary (Kshs.5,220,320) was a judicious award.
Whether the respondent violated constitutional provisions on fair labour practices, fair administrative action and due process
Yes; the respondent violated Section 41 of the Constitution (fair labour practice), Article 47 (fair administrative action), Article 50 and the rules of natural justice, and Article 236 (dismissal without due process).
The respondent ignored its binding HR Policy and Procedure Manual by failing to constitute a disciplinary committee, failed to supply particulars enabling the claimant to answer the charges, and denied him a verbal hearing and a right of appeal. As a public officer, the claimant was also protected by Article 236 which forbids dismissal or disciplinary action without due process of law.
Legal principles established
#- Once a court finds an employer unlawfully terminated an employee, the appropriate remedy is that provided under Section 49(1) of the Employment Act, and the court must exercise its discretion judiciously guided by Section 49(4).
- Courts do not encourage employees to claim multiple remedies arising from the same wrongdoing by the employer, whether framed as constitutional, statutory or contractual violations.
- A public employer must follow its own disciplinary policy, including constituting a disciplinary committee and granting a hearing and a right of appeal, before termination; failure violates Section 41 of the Employment Act, Articles 41, 47, 50 and 236 of the Constitution and the rules of natural justice.
- An employer bears the burden of proving valid reasons for termination on a balance of probabilities, and vague, non-specific charges fall far short of that standard.
- A public officer suspended on half pay under Section 62(1) of the Anti-Corruption and Economic Crimes Act who is acquitted is entitled to refund of the deducted half salary and allowances.
Court orders
#- 1.Kshs.5,220,320 in compensation (equivalent of 8 months' salary) for unlawful and unfair termination
- 2.Kshs.3,088,580 being withheld half salary and allowances for 11 months
- 3.Withheld pension contribution at 15% of basic salary for 11 months in the sum of Kshs.373,340, payable to the claimant and/or the pension fund, whichever is applicable
- 4.Unpaid leave allowance withheld in January, 2014 of Kshs.226,270
- 5.Total award of Kshs.8,908,510
- 6.Interest at court rates from date of termination till payment in full in respect of the withheld salary, pension contribution and leave allowance, and from date of judgment in respect of compensation
- 7.Certificate of Service to be issued to the claimant within 30 days
- 8.Costs of the suit to the claimant
- Jurisdiction invoked
- Employment Act, 2007 (Sections 41, 43, 45, 49) and Articles 41, 47, 50 and 236 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Karisa v Independent Electoral and Boundaries Commission (Cause 1319 of 2017) [2023] KEELRC 2350 (KLR)", Case Analysis (2023). Cause No 1319 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2350/eng@2023-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.