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ELRCDismissedPetition dated 24th June 2022· [2023] KEELRC 2928 (KLR)

Ali v Director General, National Youth Service & another (Petition E125 of 2022) [2023] KEELRC 2928 (KLR)

Employment and Labour Relations Court
16 November 2023
NMNzioki Wa Makau
3,403 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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The Employment Court upheld the dismissal of a National Youth Service worker who deserted duty for 185 days, ruling he received a fair hearing and appeal.

What this practically means

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Executive summary

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The Petitioner, a National Youth Service employee earning Kshs. 17,880 gross per month, petitioned the Employment and Labour Relations Court at Nairobi seeking quashing of his dismissal dated 23rd October 2017 (backdated to 4th April 2016) and of the 16th June 2021 letter upholding his appeal, reinstatement without loss of rank, a declaration of violation of his rights to fair hearing and fair administrative action under Articles 47 and 50, twelve months' gross salary for unlawful termination, damages, an unconditional certificate of service and costs. He contended he was dismissed for desertion without a hearing, that internal memos recommending only a warning were ignored, and that his appeal lay unanswered for four years. The Respondents, through a Replying Affidavit of Ms. Jessica Mwangi, maintained the Petitioner deserted duty for 185 days, was notified, issued show cause letters, and was heard on his appeal after PSC direction; they argued his appeal plea for a warning amounted to an admission, that reinstatement is discretionary and time-barred, and that the memos relied on were illegally obtained. The Petition was disposed of by written submissions. Framing four issues on breach of constitutional rights, due process, validity of the reason for dismissal and entitlement to the prayers, the court found the Petitioner was accorded hearings and admitted the desertion; there was no evidence of malice. The Petition was dismissed on 16th November 2023 with no order as to costs.

Key legal issues

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01

Whether the Petitioner's constitutional rights to fair hearing and fair administrative action were violated

Holding

No violation was established; the Petitioner was heard on his disciplinary case and on his appeal, including a hearing before an appointed Committee as directed by the PSC

Reasoning

The court found the Petitioner was notified of the desertion charge, issued a show cause letter and reminder, and his appeal was heard after PSC direction, at which he defended himself. The PSC refused to reverse dismissal on account of his previous record of absenting himself. No malice by superiors or the PSC was shown, so the allegations of procedural unfairness failed.

p. 6
02

Whether the reason for dismissal (desertion of duty for 185 days) was valid

Holding

The reason was valid; the Petitioner effectively admitted the desertion in his appeal by pleading for a warning instead of dismissal

Reasoning

The court accepted the Respondents' evidence of radio messages, show cause letter and DHRMAC deliberations recommending dismissal for 185 days' desertion. The Petitioner's appeal plea for leniency and undertaking not to repeat the offence amounted to an admission. His prior warning for absenting himself without leave reinforced the propriety of dismissal.

p. 6

Legal principles established

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  • An employee dismissed for desertion of duty who was accorded a hearing and whose appeal was heard and determined cannot establish a constitutional violation absent evidence of malice

Court orders

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  1. 1.The Petition is dismissed with no order as to costs

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 27, 45, 47, 50, 50(4), 232
  • Employment ActSections 41, 43, 45, 46, 49(4)
  • Public Service ActRules and Regulations thereof
  • Employment and Labour Relations Court (Procedure) Rules 2016Regulation 10
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rules 2013Regulation 10(2)

Cases cited (12)

  • Ongaro v Judicial Service Commission & another (Petition E007 of 2021)
    2022 KEELRC 1175 (KLR)
  • Mumo Matemu v Trusted Society of Human Rights
  • Anarita Karimi v Republic
  • Brian Makori v Kenya Examination Council [2017] eKLR
    Petition No. 17 of 2016, [2017] eKLR
  • Siewchand Ramanoop v The AG of Trinidad & Tobago
    [2005] UKPC 15
  • Kiambu County Tenants Welfare Association v Attorney General & another [2017] eKLR
    [2017] eKLR
  • East African Portland Cement Company Limited v Attorney General & another [2013] eKLR
    [2013] eKLR
  • BA Imonikhe v Unity Bank PLC
    S.C 68 of 2001
  • Kenya Ports Authority v Fadhil Juma Kisuwa [2017] eKLR
    [2017] eKLR
  • Martin Waweru Nguru v Attorney General [2019] eKLR
    [2019] eKLR
  • Teachers Service Commission v Sarah Nyanchama Ratemo [2014] eKLR
    Civil Appeal No. 14 of 2014, [2014] eKLR
  • Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 others [2014] eKLR
    [2014] eKLR
Jurisdiction invoked
Constitution of Kenya, Articles 47 and 50 (fair labour practices, fair hearing and fair administrative action) invoked in a petition under the Employment and Labour Relations Court jurisdiction

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, "Ali v Director General, National Youth Service & another (Petition E125 of 2022) [2023] KEELRC 2928 (KLR)", Case Analysis (2023). Petition dated 24th June 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2928/eng@2023-11-16

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