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ELRCPartially AllowedNot stated in the judgment as provided· [2023] KEELRC 2668 (KLR)

Otieno & 3 others v Kenya Revenue Authority (Constitutional Petition E074 of 2023) [2023] KEELRC 2668 (KLR)

Employment and Labour Relations Court
30 October 2023
BOByram Ongaya
3,856 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled KRA unlawfully terminated seconded police officers' contracts and must pay each of 41 officers 10 months' gross salary.

What this practically means

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Executive summary

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Four petitioners, police officers seconded from the National Police Service to the Kenya Revenue Authority's Investigations and Enforcement Department on three-year contracts (some extended by two years), petitioned the Employment and Labour Relations Court after the respondent terminated their secondments by letters dated 31st January 2023, delivered on 3rd February 2023, with retrospective effect. They sought declarations that the termination was unlawful and unconstitutional, salary for the remainder of their contracts, damages, and costs. The respondent justified the terminations under the secondment contracts, section 42(3) of the Public Service Commission Act and the PSC Guidelines on Secondment in the Public Service. The Court held that the contracts allowed termination only on disciplinary or other disclosed grounds; no disciplinary process was initiated and no grounds were stated. The Guidelines were neither incorporated into the contracts nor invoked in the termination letters and appeared to be an afterthought, and no evidence showed the secondment was no longer necessary. The Court found violations of Articles 10, 41 and 47 of the Constitution and rejected the doctrine of constitutional avoidance, no statutory remedy having been shown. On remedies, the declaration was granted and each of the petitioners and 37 affected officers was awarded 10 months' gross salary (9 months' compensation under section 49 plus one month's notice pay, less PAYE), payable by 31st December 2023 with interest thereafter. The prayers for the remainder of contract salaries, aggravated/exemplary damages, and accrued leave pay were declined. The respondent was ordered to pay the petitioners' costs. Judgment signed, dated and delivered at Nairobi on 30th October 2023 by Byram Ongaya, Principal Judge.

Key legal issues

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01

Whether the termination of the secondment contracts was unfair, unlawful and unconstitutional

Holding

Yes - the termination was flagrant breach of the secondment contracts and violated Articles 10, 41 and 47 of the Constitution

Reasoning

The secondment contracts provided termination only on disciplinary or other grounds. No disciplinary process was initiated and no other grounds were disclosed in the termination letters. The Guidelines on Secondment in the Public Service were neither incorporated in the contracts nor invoked in the termination letters and were an afterthought. No evidence showed it was no longer necessary for the officers to remain seconded under section 42(3) of the Public Service Commission Act. The termination was retrospective, without notice or reason.

p. 5
02

Whether the petition offended the doctrine of constitutional avoidance

Holding

No - the respondent did not show a statutory remedy being avoided; the petitioners established constitutional violations

Reasoning

Section 12(2) of the Employment and Labour Relations Court Act concerns the Court's jurisdiction, which the petitioners invoked by petition. The respondent failed to identify a statutory remedy that the petitioners were bypassing. Having found established violations of constitutional rights, the constitutional route was proper and the avoidance doctrine did not apply.

p. 7
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What remedies follow from the findings

Holding

Declaration granted; compensation of 10 months' gross salary per officer (9 months under section 49 plus one month notice pay, less PAYE); salary-for-term, aggravated/exemplary damages and leave pay declined

Reasoning

Applying section 49 factors, aggravating features included the sudden termination, financial stress, retrospective effect, non-payment for work done and constitutional violations. The mitigating factor of reversion to National Police Service ranks reduced the maximum 12 months to 9 months, plus one month's notice pay. Compensating for the full remaining contract term would be oppressive to the respondent and taxpayers.

p. 8

Legal principles established

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  • A secondment contract terminable only on disciplinary or other disclosed grounds cannot be summarily terminated without a reason; an employer may not rely on guidelines neither incorporated into the contract nor invoked in the termination letter
  • Termination without notice, without due reason and retrospectively violates Articles 10, 41 and 47 of the Constitution
  • Section 3(2)(b) of the Employment Act exclusion of police services does not bar an officer seconded to and serving another employer from invoking the Act's compensation framework

Court orders

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  1. 1.Declaration that the respondent's unilateral decision to summarily terminate the secondment of the petitioners and affected officers by letters dated 31st January 2023, which resulted to sudden reduction of their salaries and other work benefits, was un-procedural, unlawful and unconstitutional; involved unfair or discriminatory treatments and amounted to unfair and unlawful termination from employment
  2. 2.The respondent to pay each of the petitioners and the 37 other affected officers 10 months' gross monthly salaries at the last monthly rate prior to the termination of the secondment contracts (Less PAYE), the amount due to each to be computed as part of the decree
  3. 3.The amount to be paid by 31.12.2023 failing which interest to be payable at Court rates from the date of judgment till full payment
  4. 4.The respondent to pay costs of the petition

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 19, 27, 41, 47, 48, 50(1), 232(2), 236, 47(2)
  • Public Service Commission ActSection 42(3)
  • Employment and Labour Relations Court ActSection 12(2)
  • Employment ActSections 3(2)(b), 43, 45, 49, 51(1)
  • Public Officer Ethics ActSection 27(5) & (6)
  • Kenya Revenue Authority ActSection 13
Jurisdiction invoked
Section 12(2) of the Employment and Labour Relations Court Act, 2011

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, "Otieno & 3 others v Kenya Revenue Authority (Constitutional Petition E074 of 2023) [2023] KEELRC 2668 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2668/eng@2023-10-30

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