Maina v Attorney General & another (Employment and Labour Relations Cause 1403 of 2018) [2024] KEELRC 1016 (KLR)

4. That in the year 2003 the plaintifi was transferred to Kisii District in the ofice of the President, Provincial Administration and Internal Security as a personnel oficer in the Kisii District Commissioner’s ofice. 5. That in July 2007, the plaintifi received a letter from the permanent secretary in the ofice of the President, Provincial Administration and Internal Security requiring the plaintifi to show cause over alleged leaking of confidential information in the District Commissioner’s ofice. That the plaintifi replied to the letter showing his innocence. 6. That by a letter dated 25th October 2005, the plaintifi was dismissed from employment without notice and opportunity to be heard. 7. That the plaintifi made appeal to the Public Service Commission to have the decision reversed but the plaintifi was not given a hearing nor receive any decision reversing the dismissal from the Public Service Commission. 8. The plaintifi was cross-examined by counsel Oure for the respondent. PW1 explained that he was informed by the District Commissioner that he had leaked information regarding appointment of an Assistant Chief before the appointment was formally announced by the District Commissioner. 9. PW1 explained that the file containing the appointment letter was under lock and key in the plaintifi’s drawer however, the secretary to the District Commissioner and the District Commissioner were in possession of the file before the plaintifi locked it in the ofice drawer and he did not know how and by whom the appointment was leaked to the media before formal announcement. The plaintifi denied having leaked the information. 10. The plaintifi said that he was not called to a disciplinary hearing to defend himself. That the dismissal was not for a valid reason and the respondent dismissed him without notice and without following a fair procedure. That the suit be allowed as prayed. 11. The respondent did not call any witness to refute the evidence adduced by the plaintifi despite having filed a statement of defence to the suit. 12. The plaintifi and the defendants filed submission upon closure of their respective cases. Determination 13. The court has carefully considered the testimony by the plaintifi in the absence of any rival testimony by the defendant. The court has also considered the submissions by both parties. The issues for determination are:a. Whether the plaintifi has proved his case on a balance of probability. b. Whether the plaintifi is entitled to the reliefs sought. 14. In terms of section 107 and 108 of the Evidence Act Cap 80 Laws of Kenya, the employee has the onus of proving that his employment was unlawfully and unfairly terminated by the employer. 15. The employer has the onus of rebuttal and demonstrate that the dismissal was lawful and fair. 16. The defendant herein failed to adduce any evidence to rebut the evidence adduced by the plaintifi that the defendant did not have any valid reason to dismiss him from employment. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1016/eng@2024-04-18 2

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17. The claimant testified that he was not guilty of leaking to the media, information on the appointment of an assistant chief before the formal announcement by the District Commissioner. The defendant did not adduce any evidence to contradict the clear and credible evidence adduced by the plaintifi. 18. The plaintifi also testified that he was not called to a disciplinary hearing to explain his innocence and the dismissal was efiected without following any fair procedure. 19. The court finds that the dismissal of the plaintifi was unlawful and unfair and was in violation of the repealed Employment Act Cap 26 Laws of Kenya which was applicable as at the date of dismissal. The plaintifi is entitled to an award of damages for the breach of his right to fair hearing. 20. The court relies on the decision in Mary Chemweno Kiptui versus Kenya Pipeline Company Limited [2014] eKLR where the court emphasized that an employer must follow a fair procedure before terminating the employment contract of an employee. These principles were still applicable in the repealed Employment Act cap 226 laws of Kenya. 21. In Pius Machafu Isuindu versus Lavington Security Guard Limited [2017] eKLR the Court of Appeal held that:“ There can be no doubt that the Act, which was enacted in 2007, places heavy legal obligations on the employers in matters of summary dismissal for breach of employment contract and unfair termination involving breach of statutory law. The employer must prove the reasons for the termination/dismissal (section 43); prove that the reasons are valid and fair (section 45); prove that the grounds are justified (section 47(5)…” 22. The court has considered that the plaintifi had an illustrious career with the respondent from 1996 up to the year 2007 when his employment was unlawfully and unfairly curtailed. The court finds that the plaintifi was innocent of any misconduct and did not contribute to the dismissal. The defendant aggravated the matter by summarily dismissing the plaintifi without any notice and without payment of any terminal benefits. The court finds that the plaintifi sufiered loss and damage and was not compensated for the loss. The defendant failed to render a decision upon appeal by the plaintifi and has kept the plaintifi in limbo to date. The defendant therefore denied the plaintifi full and equal benefit of the law and this is also a further aggravating circumstance in general. 23. The court has considered the long period the plaintifi served the defendant from the year 1996 to May 2007. The court has considered the cruel manner in which he was summarily dismissed without hearing, without notice and without payment of terminal benefits. 24. The plaintifi sufiered loss of income and support of himself and family. The plaintifi had not obtained alternative employment for a long time and sufiered loss and damage. The court has considered the passage of time and depreciation of currency value since 2007 to date. The court has also considered that the plaintifi had sought to be reinstated to his employment without loss of any income which is now not plausible due to passage of time. 25. The court has considered principles of award of general damages as enunciated in various cases including: 1. Kenya Ports Authority and Joseph Makau Munyao and 4 others Petition E008 of 2023 KESC 112 (KLR ) (Civ) Kenya. 2. Civil Appeal No 352 of 2017, Kenya Broadcasting Corporation versus Geofrey Wakio (2019) eKLR https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1016/eng@2024-04-18 3

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and award the plaintifi a lump sum of Kshs. five (5) million in general damages for the unlawful and unfair dismissal from employment and damage sufiered as a result thereof. 26. The damages are payable with interest at court rates from date of judgment till payment in full. 26. The respondent to pay the costs of the suit. DATED AT NAIROBI THIS 18TH DAY OF APRIL, 2024 MATHEWS NDERI NDUMA JUDGE Appearance: Mr. Ondieki for claimant Mr. Oure for respondent Mr. Kemboi, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1016/eng@2024-04-18 4

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