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ELRCPartially AllowedNairobi ELRC Petition No. E013 of 2023· [2023] KEELRC 2749 (KLR)

Muema v Independent Electoral and Boundaries Commission (Petition E013 of 2023) [2023] KEELRC 2749 (KLR)

Employment and Labour Relations Court
2 November 2023
6,974 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~28 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled an employee's dismissal had valid reasons but was procedurally unfair, awarding three months' salary instead of reinstatement.

What this practically means

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Executive summary

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The Petitioner, a driver employed by the Respondent from 2010 to 2023, challenged his summary dismissal on 19th January 2023 following disciplinary proceedings for absence from duty without leave on 22nd and 23rd February 2022 while on duty in Mombasa. He sought declarations of constitutional violation, reinstatement, constitutional damages and costs, arguing defective disciplinary procedure, improper constitution of the Disciplinary Committee, denial of the right to be accompanied, delay and non-supply of hearing minutes and the investigation report. The Respondent maintained that the absence without leave amounted to gross misconduct justifying dismissal and that due process was followed, attributing the delay to the 2022 General Election. The court framed three issues: whether the Petition met the constitutional petition threshold, whether termination was unfair, and entitlement to reliefs. It held the Petition failed the Anarita Karimi Njeru precision threshold since the dispute was purely an employment matter remediable under the Employment Act. On the merits, the court found substantive justification for termination - the Petitioner admitted absenting himself without leave - but found the procedure flawed: the hearing invitation was not formally served beforehand, denying him the Section 41 right to be accompanied, and the case should have gone to the HRMAC rather than the Commission Disciplinary Committee. The 10-month delay was excused. The court declared the termination unfair and unlawful and awarded the equivalent of 3 months' gross salary, costs and interest, but declined reinstatement and constitutional damages.

Key legal issues

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01

Whether the Petition met the constitutional petition threshold

Holding

It did not; the statutory route under the Employment Act was the proper avenue and the alleged violations lacked precision

Reasoning

The court found the alleged constitutional violations were all remediable under the Employment Act and the Fair Administrative Action Act in the context of an employment relationship, and the pleading cited numerous articles without precision as to the manner of infringement, failing the Anarita Karimi Njeru standard.

p. 7
02

Substantive fairness of termination

Holding

There was a valid and fair reason - absence from duty without leave, which the Petitioner admitted

Reasoning

The Petitioner admitted absconding his duties in Mombasa for two days after being insulted by his supervisor, contrary to clause 12.10.1(v) of the HR Manual and Section 44(4)(a) of the Employment Act. His conduct constituted gross misconduct justifying summary dismissal, and the reason was proved on a balance of probabilities.

p. 10
03

Procedural fairness of termination

Holding

The termination was procedurally flawed and unfair

Reasoning

The employer failed to serve a formal invitation letter before the hearing, denying the employee time to prepare and the right to be accompanied; the Disciplinary Committee was improperly constituted as the case should have gone to the HRMAC for a Grade 9 employee; and no minutes or record of the hearing were availed, breaching Section 41 of the Employment Act.

p. 13
04

Delay in the disciplinary process

Holding

The 10-month delay was excused by the Respondent's engagement in the 2022 General Election

Reasoning

Although the HR Manual required conclusion within 6 months, clause 12.1.5 allowed extension in exceptional circumstances up to 24 months. The court took judicial notice of the Respondent's role in conducting the 2022 General Election and held the explanation reasonable.

p. 12
05

Appropriate reliefs

Holding

Declaration of unfair termination granted; 3 months' gross salary compensation; reinstatement and constitutional damages declined

Reasoning

Having found procedural unfairness but substantive justification, the court exercised its discretion under Section 49(1)(c) and (4) of the Employment Act, weighing 13 years of service, clean disciplinary record and the Petitioner's substantial contribution to the termination, to award the equivalent of 3 months' gross salary.

p. 14

Legal principles established

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  • A constitutional petition must set out with reasonable degree of precision the complaint, the provisions infringed and the manner of infringement (Anarita Karimi Njeru rule)
  • Where a matter is equally addressed by an Act of Parliament, the statutory provisions ought to be invoked in the first instance before invoking the Constitution
  • Termination must be both substantively justified and procedurally fair
  • The procedural requirements of Section 41 of the Employment Act are mandatory, including the right to be accompanied by a fellow employee of choice

Court orders

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  1. 1.Declaration that termination of the Petitioner's employment by the Respondent on 19th January, 2023 was unfair and unlawful
  2. 2.Equivalent of 3 months gross salary compensation
  3. 3.Costs of this suit
  4. 4.Interest at court rates from date hereof till payment in full

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1(1)&(3), 2(1)(2)(4), 3(1), 10(1), 19(3)(a), 20(4), 21(1), 23, 25(c), 27(1)&(2), 28, 29(a)&(f), 32, 33, 35, 41, 43, 47(1)(2), 48, 49, 50(1)(2), 59(4), 73(1)(2), 75, 88(5), 159, 201(a), 231(g), 232, 236, 248, 249(1)(c), 250, 252, 259(1)
  • Employment Act, 2007Sections 35(1)(c), 41, 42, 43, 44(2), 44(4)(a), 45, 45(2), 45(4)(b)&(5), 47(5), 49(1)(c), 49(3)(a), 49(4)
  • Fair Administrative Action Act, 2015Sections 3(1) - note: also cited as ELRC Act, 4, 4(1), 7, 10(1), 11, 12
  • Employment and Labour Relations Court Act, 2011Section 3(1), Section 12(3)(vii)
  • Independent Electoral & Boundaries Commission Act, 2011Sections 11A and paragraph 8
  • Civil Procedure Act (Chapter 21)Section 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (34)

  • Mumo Matemu V Trusted Society of Human Rights Alliance
  • Anarita Karimi Njeru V Attorney General
  • M W K & another v Attorney General & 3 others (2017) eKLR
    (2017) eKLR
  • Narok County Government & another V Richard Bwogo Birir & another (2015) eKLR
    (2015) eKLR
  • Kenya Human Rights Commission & another V Non-Governmental Organizations Co-ordination Board & another (2018) eKLR
    (2018) eKLR
  • Dry Associates Ltd V Capital Markets Authority & another (2012) eKLR
    (2012) eKLR
  • R V Kenya University Ex Parte Njoroge Humphrey Mbuthi (2015) eKLR
    (2015) eKLR
  • Menginya Salim Murgani V Kenya Revenue Authority (2008) eKLR
    (2008) eKLR
  • Kenfreight (EA) Ltd V Benson K. Nguti (2019) eKLR
    (2019) eKLR
  • Republic V Institute of Certified Public Accountants of Kenya Ex Parte Joy Vipinchandra Bhatt T/A Jv Bhat & Company (2008) eKLR
    (2008) eKLR
  • Kenya Union of Commercial Food & Allied Workers V Meru North Farmers Sacco Ltd (2014) eKLR
    (2014) eKLR
  • Jared Aimba V Fina Bank Ltd (2016) eKLR
    (2016) eKLR
  • Kenya Airways Ltd V Aviation & Allied Workers Union & 3 others (2014) eKLR
    (2014) eKLR
  • Cooperative Bank of Kenya Ltd V Banking Insurance & Finance Union (Kenya)(2015) eKLR
    (2015) eKLR
  • Mary Chemweno Kiptui V Kenya Pipeline Co. Ltd (2014) eKLR
    (2014) eKLR
  • Alex Wainaina Mbugua V Kenya Airways Ltd (2017) eKLR
    (2017) eKLR
  • Gitobu Imanyara & 2 others V Attorney General (2016) eKLR
    (2016) eKLR
  • Kenya Human Rights Commission V Non-Governmental Co-ordination Board (2016) eKLR
    (2016) eKLR
  • Joseph Nzioka V Smart Coatings Ltd (2017) eKLR
    (2017) eKLR
  • Ann Njoroge V Topez Petroleum Ltd
  • Gilbert Michael Maigacho V Coast Development Authority (2021) eKLR
    (2021) eKLR
  • Kenya Revenue Authority V Reuwel Waithaka Gitahi & 2 others
  • George Okello Munyolo V Unilever Kenya Ltd (2019) eKLR
    (2019) eKLR
  • Isaiah Biwott Kangwony V Independent Electoral & Boundaries Commission & another (2018) eKLR
    (2018) eKLR
  • Walter Ogal Anuro V Teachers Service Commission (2013) eKLR
    (2013) eKLR
  • Anthony Mkala Chitavi V Malindi Water & Sewerage Co. Ltd
  • Elizabeth Wakanyi Kibe V Telkom Kenya Ltd
  • Kiambu County Tenants Welfare Association V Attorney General & another (2017) eKLR
    (2017) eKLR
  • Trusted Society of Human Rights V Attorney General & 2 others
  • Pius Machafu Isindu V Lavington Security Guards Ltd (2017) eKLR
    (2017) eKLR
  • Naima Khamis V Oxford University Press E.A. Ltd (2017) eKLR
    (2017) eKLR
  • Loice Atieno V Kenya Commercial Bank Ltd (2015) eKLR
    (2015) eKLR
  • Postal Corporation of Kenya V Andrew K. Tanui (2019) eKLR
    (2019) eKLR
  • Seabolo V Belgravia Hotel (1997) 6 BLLR 829 (CCMA)
    (1997) 6 BLLR 829 (CCMA)
Jurisdiction invoked
Articles 20, 21, 23, 41, 47 and 236 of the Constitution of Kenya, 2010; Sections 41, 43, 44(2), 45 and 49 of the Employment Act, 2007; Fair Administrative Action Act, 2015; Independent Electoral & Boundaries Commission 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, "Muema v Independent Electoral and Boundaries Commission (Petition E013 of 2023) [2023] KEELRC 2749 (KLR)", Case Analysis (2023). Nairobi ELRC Petition No. E013 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2749/eng@2023-11-02

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