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ELRCPartially AllowedPetition dated 25.04.2023· [2024] KEELRC 505 (KLR)

Joseph v Kenya Medical Research Institute (K.E.M.R.I) (Petition E80 of 2023) [2024] KEELRC 505 (KLR)

Employment and Labour Relations Court
7 March 2024
3,975 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled KEMRI unfairly dismissed an employee over an unlawful transfer, quashed the dismissal and ordered full reinstatement with back pay.

What this practically means

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Executive summary

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The petitioner, employed by the respondent as a Supplies Assistant in 2002, obtained the respondent's approval in 2016 to pursue a Bachelor of Commerce at Daystar University through evening classes, self-funded. In 2017 the respondent re-designated and transferred him to the Centre of Infectious & Parasitic Disease Control Research at Busia as Assistant Administrative Officer. He objected, citing his approved studies, and the Busia Director indicated his services were not needed there. After obtaining his degree and professional membership, he sought redeployment to Procurement. Instead he faced a show-cause letter, stoppage of salary, a disciplinary hearing and summary dismissal effective 10.02.2022 for absence from duty and insubordination. He petitioned the Employment and Labour Relations Court alleging unfair labour practice and violation of Articles 27(1), 41 and 47 of the Constitution. The respondent maintained the dismissal was lawful under section 44 of the Employment Act and its HR manual. The court held that the re-designation and transfer were unlawful for failing the statutory conditions under section 40 of the Public Service Commission Act, 2017, including the officer's consent, and violated Articles 41 and 47. The summary dismissal was unfair in substance and procedure, its reasons not genuine under sections 43 and 45 of the Employment Act, since the alleged absence was never put in the show-cause letter and his grievances, including the death of his wife, were ignored. The court granted declarations, certiorari quashing the dismissal, reinstatement with full back payment payable by 01.09.2024, and costs to the petitioner.

Key legal issues

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01

Lawfulness of the re-designation and transfer

Holding

The re-designation and transfer were unfair, unreasonable, oppressive and unlawful for non-compliance with section 40 of the Public Service Commission Act, 2017

Reasoning

The officer did not consent to re-designation as required by section 40(2) and (3) of the Public Service Commission Act and Regulation 35 of the PSC Regulations, 2020. The respondent failed to show the statutory conditions were met. The Busia office itself confirmed it lacked capacity to oversee him. The transfer violated Articles 41 and 47.

p. 7
02

Validity of the summary dismissal

Holding

The summary dismissal was unfair in substance and procedure; the reasons were not genuine

Reasoning

The dismissal arose from the unlawful transfer. The allegation of absence from duty was never put in the show-cause letter, denying the petitioner a chance to exculpate. The grievance and personal tragedy of the death of his wife were not addressed, and the appeal was never determined. This breached sections 43, 45 and 46 of the Employment Act.

p. 7
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Remedies

Holding

Declarations granted, certiorari quashing the dismissal with reinstatement and full back payment, and costs

Reasoning

Having found unfair labour practice and violation of Articles 41 and 47, the court granted the three declarations sought, issued certiorari quashing the dismissal with reinstatement without loss of salary and benefits plus full back payment, and awarded costs. Damages were not awarded for want of submissions.

p. 8

Legal principles established

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  • Re-designation of a public officer is initiated by the officer and requires statutory safeguards including the officer's consent
  • An employer must address an employee's valid grievance before disciplinary action; failure to do so renders summary dismissal unfair
  • Reasons for summary dismissal must be genuine and relate to the employee's conduct, capacity or operational requirements

Court orders

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  1. 1.Declaration that the respondent's actions amounted to unfair labour practice
  2. 2.Declaration that the petitioner had a legitimate expectation to work till his retirement age which was cut short through the respondent's unconstitutional, unfair, unreasonable and unlawful conduct
  3. 3.Declaration that the respondent's decision to summarily dismiss the petitioner was discriminatory, procedurally unfair and without evidence or reasonable basis, hence null and void ab initio
  4. 4.Judicial review order of certiorari quashing and setting aside the dismissal letter dated 15th February 2022, reinstating the petitioner to his rank without loss of salary and benefits, with full back payment from the date of dismissal
  5. 5.Accruing payments to be made by 01.09.2024 and the petitioner deployed forthwith, failing interest at Court rates until full payment
  6. 6.Respondent to pay petitioner's costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27(1), 41, 47
  • Employment Act, 2007Sections 43, 44, 45, 46
  • Public Service Commission Act, 2017Sections 40, 74
  • Public Service Commission Regulations, 2020Regulation 35
Jurisdiction invoked
Articles 41 and 47 of the Constitution of Kenya, 2010 (fair labour practices and fair administrative action); Employment Act, 2007

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, "Joseph v Kenya Medical Research Institute (K.E.M.R.I) (Petition E80 of 2023) [2024] KEELRC 505 (KLR)", Case Analysis (2024). Petition dated 25.04.2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/505/eng@2024-03-07

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