Kizito M. Lubano v Kemri Board of Management & 8 others [2015] KEELRC 227 (KLR)
The bottom line
#Kenya's Employment Court reinstated a KEMRI researcher whose dismissal was unfair, ruling employers must prove real, lawful reasons before firing in the 'public interest'.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Petition 33 of 2014 and Appeal 24 of 2015 before the Court of Appeal relate to the same issues as herein
- 2.Whether the pending appeal in Civil Appeal No.24 of 2015 will lead to the Court rendering conflicting decisions
- 3.Whether the non-joinder of KEMRI is fatal to the suit
- 4.Whether there is misjoinder and non-joinder of parties
- 5.Whether the disciplinary proceedings against the Petitioner met the required threshold
- 6.Whether the remedies sought are due
Key legal issues
#Whether the Petition was barred by the existence of Petition No.33 of 2014 and the pending Civil Appeal No.24 of 2015
The Petition is not a replica of Petition No.33 of 2014; parties and prayers are fundamentally different and the pending appeal arises from the ruling in that other petition, not this one
Petition No.33 of 2014 was filed by Okiya Omtata Okoiti and another as public-interest litigants against KEMRI Board, with the Petitioner as an interested party, and concerned a threatened retirement. The present Petition is by Kizito Lubano personally on the basis of an actual dismissal. The appeal arises from the ruling in Petition No.33 of 2014 and has nothing to do with the current petition, so no conflicting decisions would arise.
Whether non-joinder of KEMRI, the employer, is fatal to the Petition
Non-joinder of KEMRI is not fatal; the respondents sued each have an assigned role and the Court should not overly rely on technicalities in labour relations
Relying on the ELRC Procedure Rules definition of a party, the Werrot test of necessary parties, Amon v Raphael Tuck and Busienei v Transnational Bank, the Court held that in employment matters Article 41 and 159 of the Constitution and section 20(1) of the ELRC Act require substantive justice over technicalities. Each respondent was assigned a role, and omission of KEMRI does not remove responsibility from those sued.
Whether allegation 1 (refusal to facilitate amendment of KEMRES Memorandum and Articles) justified dismissal
The finding on allegation 1 lacked justification; using KEMRI disciplinary mechanisms to coerce changes to a registered limited company was illegal, coercive and contrary to Articles 41 and 47
KEMRES was a company incorporated under the Companies Act on 14 March 2011; after registration its affairs could only be regulated under that Act and by its directors. The Petitioner became a director with his employer's sanction. Requiring him to alter shareholding through KEMRI disciplinary processes was clothed with illegality and constituted unfair administrative action; there was motive to remove him for refusing the coercion.
Whether allegations 4 and 5 (absence from duty and abandonment of PC evaluation) justified dismissal
Both allegations failed: absence was already punished by stopping salary, making dismissal on the same ground double punishment; and permission to leave the PC evaluation was given by the Director/CEO, so the charge lacked merit
On allegation 4 the salary for the days of alleged absence was stopped before hearing; using the same ground for dismissal was excessive double punishment contrary to fair labour practice. On allegation 5, the Director as CEO responsible for day-to-day running under section 30 of the Science, Technology and Innovation Act had let the Petitioner leave; in the absence of the Director as the key witness, the charge of abandonment without formal approval could not sustain dismissal.
Whether the retirement on public interest met the required threshold
The dismissal and retirement on public interest lacked justification, was arbitrary and influenced by malice and ill-motive, violating Articles 47 and 50
Applying DK Njagi Marete and John Benson Githinji, retirement in the public interest requires notice of the intention, availing of complaints, and an opportunity to show cause. No proceedings related to any notice of retirement in the public interest, and the employer failed to show the public policy objective behind the decision as required by section 43 of the Employment Act. The internal appeal was also never considered, rendering the decision a nullity.
What remedies flow from the violations found
Reinstatement was granted because the violations were serious, the position was still unfilled and less than one year had elapsed since dismissal; damages were left for later consideration
Under section 49 of the Employment Act the Court assessed that only reinstatement could address the serious illegalities. Mary Rigoro's affidavit showed the Petitioner's duties were taken over by other officers with no substantive recruitment, so the position remained available. The Petitioner moved the Court promptly. The claim for general and exemplary damages involved a different assessment process and was not gone into.
Legal principles established
#- Retirement in the public interest requires the employer to show objective and demonstrable grounds driven by a public policy objective, proved with valid reasons
- Non-joinder of the employer is not fatal where the respondents sued are necessary to enable the Court effectually and completely adjudicate on all questions
- A Court may intervene in internal disciplinary proceedings where they are shrouded with illegality or ulterior motive
- Under section 43 of the Employment Act the employer must prove genuine reasons for termination, failing which the termination is unfair
Court orders
#- 1.The decision to dismiss and retire the Petitioner in the public interest is quashed; it is declared the dismissal and retirement in the public interest was arbitrary, unfair and unlawfully applied to him
- 2.A declaration that under Article 236 of the Constitution the Petitioner remains the lawful holder of the position of Principal Research Officer and Head of Planning, Monitoring and Evaluation of KEMRI with full benefits until otherwise lawfully terminated
- 3.The Petitioner is reinstated to his position with KEMRI with all back salary, allowances, benefits and other legal dues
- 4.The Petitioner to report on duty on 2nd November 2015 at 0830 hours and the respondents jointly and severally to permit resumption of duties
- 5.The 1st Respondent restrained from undertaking disciplinary action against the Petitioner with regard to matters subject of proceedings held on 4th April 2014
- 6.The joinder of the 9th Respondent was not necessary; it performs a public duty and no costs are due from it
- 7.The 1st Respondent to meet the Petitioner's costs while the 2nd, 3rd, 4th, 5th, 6th, 7th and 8th respondents meet their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 41, 47, 50 and 159 of the Constitution read together with section 20(1) of the Employment and Labour Relations Court Act
Relief refused
#Compensation for general and exemplary damages for harassment, financial loss, intimidation, defamation and mental torture
The Court declined to assess damages, holding such a claim sets in motion a different set of assessments and would be accounted for in the final orders
Claims against the 9th Respondent
The Ombudsman was bound by its constitutive statute to stop inquiry once the matter was pending in court; joinder was unnecessary
Costs
The 1st Respondent shall meet the costs of the Petitioner while the 2nd, 3rd, 4th, 5th, 6th, 7th and 8th respondents shall meet their own costs; no costs are due from the 9th Respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The decision to dismiss and retire the Petitioner in the public interest is hereby quashed; It is declared the Petitioner's dismissal and retirement in the public interest was arbitrarily, unfair and unlawfully applied to him
The Petitioner is hereby reinstated to his position with KEMRI with all his back salary, allowances, benefits and any other legal dues he was entitled to by virtue of his employment with KEMRI
The 1st Respondent shall meet the costs of the Petitioner while the 2nd, 3rd, 4th, 5th, 6th, 7th and 8th respondents shall meet their own costs.
To thus require him to make changes under KEMRES using the KEMRI disciplinary mechanisms over a limited Company is a procedure that is clothed with illegality, coercive and contrary to fair labour practices
I therefore find the disciplinary proceedings against the Petitioner were already eschewed and the resulting decision clothed with illegalities.
To allow the respondents escape responsibility where such exists, would be tantamount to rendering fair labour practice and fair industrial relations ineffective.
When a public employer justified the premature termination of a contract of employment, on the grounds of public interest, such an employer had to show its decision was driven by public policy objective, and that the decision taken was legitimate and justifiable.
Issues in the judgment
#The judgment refers inconsistently to the Petitioner's dismissal date and to the petition number: dismissal letter is said to be dated 17th November 2014 yet issued/stated as 17th December 2014, and paragraph 48 refers to 'Petition No.33 of 2014 and No.46 of 2015' although the petition is numbered 47 of 2015
The disciplinary recommendation and retirement dates are given inconsistently in the respondents' account versus the Petitioner's account
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Domitila Wanzila Muvanya v Insurance Regulatory Authority & 6 others [2016] KEELRC 1860 (KLR)[2016] KEELRC 1860 (KLR)30 May 2016followed
- Lucas Otieno Ondong v Equitorial Commercial Bank Limited & another [2016] KEELRC 1838 (KLR)[2016] KEELRC 1838 (KLR)31 Mar 2016applied
- Catherine Wambui Kariuki v Nyambura Gicuhi [2015] KEELRC 140 (KLR)[2015] KEELRC 140 (KLR)30 Nov 2015followed
- Ephrahim Muriithi Kangagi v Chairperson Teachers Service Commission & another [2015] KEELRC 120 (KLR)[2015] KEELRC 120 (KLR)12 Nov 2015followed
Cite this brief
#Cite this brief
Caselaw, "Kizito M. Lubano v Kemri Board of Management & 8 others [2015] KEELRC 227 (KLR)", Case Analysis (2015). Petition No. 47 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/227/eng@2015-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.