Ngethe v Ministry of Interior & Co-ordination of National Government & 2 others (Employment and Labour Relations Appeal E031 of 2024) [2025] KEELRC 3723 (KLR)

2. 3. 4. The Appellant therefore prays that the appeal be allowed and judgment of the lower court be varied or reviewed upward with orders for re-engagement to the public service without loss of benefit or alternatively; (b) The appellant be awarded 12 months compensation of Kshs.360,000. (c) the Appellant be paid service gratuity in the sum of Kshs.1,082,880/= (d) The Appellant be awarded the costs of this Appeal plus interest of (b) and (c) above from date of the judgment of the lower court delivered on 31/1/2024 (sic.) The issues for determination therefore come out as follows; 1. Whether the learned magistrate erred in law and fact by not substituting the order of reinstatement with one of re-engagement. 2. Whether the hearing set the matter de novo and erased the issue of time bar in the circumstances. 3. Whether the award of six months compensation as compensation for unfair termination of employment was in the circumstances manifestly low and requires enhancement. 4. Whether the award of twelve months salary as compensation for unlawful termination of employment is due and warranted. 5. Whether the trial court erred in not awarding service gratuity to the claimant. The Appellant’s case in support of an order for reinstatement are set out in section 49 (4) of the Employment Act, 2007 as read with the authority of Kenya Airways Limited v Alex Wainaina Mbugua [2019] eKLR which set out the grounds for reinstatement thus; …the wishes and expectations of the employees; the common law principle that there should be no order for specific performance in a contract for service except in very exceptional circumstances; the practicability of reinstatement; compensation paid by the employer; and chances of the employee securing alternative employment. 5. The Appellant emphasises the practical ability test and factors as was enunciated in the New Zealand Court of Appeal authority of New Zealand Educational Institute -vs- Board of Trustees of Auckland Normal Intermediate School [1994] 2 ERNZ 414 where this was defined as a successful and feasible restoration of the employment relationship by the parties all free from any friction. It is their case and submission that the public service is a broad institution where the Appellant can be re-absorbed by way of re-engagement in the absence of reinstatement. 6. The Respondent opposes the remedy for reinstatement or even re-engagement by arguing that these are discretionary remedies awarded at the discretion of the trial court. In the authority of Sotik Highlands Tea Estates Limited v Kenya Plantations and Agricultural Workers Union (2017) eKLR the Court of Appeal disregarded reinstatement after three years had lapsed. The relief of reinstatement should therefore not be given except in exceptional circumstances. An interference with the discretion of the court is not warranted in the circumstances. 7. I agree. The circumstances of this case do not warrant a case of reinstatement or re-engagement. This is because on a finding of unlawful and unprocedural termination of employment, the trial court applied its discretion in the award of compensation. Reinstatement or re-engagement were not considered bearing in mind the time lapse and circumstances of the case. The law set the time line for reinstatement https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3723/eng@2025-11-19 2

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at three years. This takes into account the convenience of industry in re-absorbing its former employees and suitability of their placement. The learned magistrate must have taken into account all these factors in not allowing a case for reinstatement or re-engagement. Nine years down the line, this would not be feasible or in the interest of public service. 8. The 2nd issue for determination is whether the issue of a de novo re-trial of the matter erased the issue of time bar. This cannot be the case. The law provides that reinstatement should not be had three years from the date of termination of employment. This has in mind the issue of convenience of the employer in re-absorbing the employee. If other factors like the duration of trial were to be factored in, it would have been easier to brings this out in the statute. It was therefore never intended that dalliance of the court as in this case be taken into account in ordering a case for reinstatement or re-engagement. 9. The 3rd and 4th last issue for determination touches on the amount of compensation awarded by the trial court. Should it have been six- or twelve-months compensation? The Appellant brings in a case for twelve months compensation on grounds that the award of six months was manifestly low in the circumstances. The Respondent opposes this and choses to rely on section 50 of the Employment Act, 2007 which provides for awards on a finding of unlawful termination of employment. This is overall a discretion remedy where the court again exercises this discretion depending on the circumstances of the case. 10. Overall, a determination of compensation for unlawful termination of employment must take all factors into account. Relevant of these is the preservation of industry. Court must exercise this discretion with a view to balancing not only the interest of the employer but also award compensation strictly for the economic loss of the employee. No more. The amount of six months compensation for unlawful and unprocedural termination of employment of the Appellant was considered and appropriate in the circumstances. 11. The last issue for determination is whether the trial court erred not awarding service/pay of gratuity to the Appellant. This is sustained by the submission that service gratuity, which is payable under section 35(5) of the Employment Act, 2007 is applicable to civil servant upon dismissal. This is because ordinarily this loses their pensions upon summary dismissal. This is countered by the Respondent who argues and submit that at all time, the Appellant was a member of a service scheme and was due for pension benefit on completion of his term of employment and therefore not entitled to service pay. On this the Respondent sought to rely on authorities of inter alia Bamburi Cement Ltd vs Farid Aboud Mohammed (2016) eKLR where the Court of Appeal observed that there is no express provision for gratuity in the Employment Act, 2007 and that this is usually made on the terms of the employment agreement or collective bargaining agreement in force. This prayer similarly fails in the circumstances. 12. I am therefore inclined to dismiss the appeal with orders that each party bears their costs of the same. DELIVERED, DATED AND SIGNED THIS 19TH DAY OF NOVEMBER 2025. D. K. NJAGI MARETE JUDGE Appearances: Moses Njuki Appellant in person Beatrice Akuno appearing for State Law Ofice for the Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3723/eng@2025-11-19 3

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