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ELRCPartially AllowedCause No 531 of 2013· [2015] KEELRC 537 (KLR)

Clement Mureithi v The Hon. Attorney General & Another [2015] KEELRC 537 (KLR)

Employment and Labour Relations Court
28 August 2015
MNMathews N. Nduma
1,631 words in judgment
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The bottom line

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A Kenyan court ruled that upgrading a disciplinary fine to dismissal without a fresh hearing was unlawful, restoring a former policeman's 29-year pension.

What this practically means

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Executive summary

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The Plaintiff, a police constable with 29 years' service, was dismissed following the escape of four suspects from custody at Kakamega in May 2008. He had arrested a suspect, Kai Nyama, removed him temporarily for interrogation, and returned him to custody but failed to book the return in the Occurrence Book, delegating the entry to Constable Kipkemboi. After the suspects escaped, the Plaintiff was charged in orderly room proceedings with negligence and fined Kshs 1,500; the Provincial Police Officer subsequently enhanced the sentence to summary dismissal. Two fellow officers charged over the same escape were reinstated. The Plaintiff appealed internally without success and then sued seeking reinstatement or damages. The court found that the enhancement of the fine to summary dismissal without affording the Plaintiff a further hearing violated section 41 of the Employment Act and amounted to double jeopardy contrary to the principle of legality. It further found that given his 29 years' service, clean record for 13 years, and age of 50, the Plaintiff was a suitable candidate for early retirement rather than summary dismissal, which cost him his pension. The court commuted the summary dismissal to a normal termination with full pension entitlements for the 29 years' service, directed the Respondents to process the pension benefits within 30 days, and awarded the Plaintiff, who was partly successful, the costs of the suit.

Key legal issues

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01

Procedural fairness in enhancing disciplinary sentence

Holding

Enhancement of the fine to summary dismissal without a further hearing was unfair and unlawful

Reasoning

The Plaintiff had been prosecuted and fined Kshs 1,500 in orderly room proceedings. The Provincial Police Officer thereafter enhanced the sentence to summary dismissal without affording the Plaintiff any further hearing. The court held this violated section 41 of the Employment Act, which requires an employee facing misconduct charges to be given an opportunity to explain himself before summary dismissal.

p. 3
02

Double jeopardy in disciplinary proceedings

Holding

Enhancement from fine to dismissal amounted to double jeopardy contrary to the principle of legality

Reasoning

Having already been punished by a fine for the same act of negligence, the Plaintiff could not be subjected to a further, more severe punishment for the same misconduct. The court found this double jeopardy contrary to the principle of legality and thus unlawful.

p. 3
03

Appropriate remedy given long service

Holding

Summary dismissal commuted to normal termination with full pension entitlements

Reasoning

The Plaintiff had served for 29 years with a clean record for the last 13, and was aged 50 with five years to retirement. Summary dismissal meant forfeiture of pension earned over 29 years. The court found him a suitable candidate for early retirement and commuted the dismissal to normal termination.

p. 4

Legal principles established

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  • Enhancing a disciplinary sentence without affording the employee a further hearing breaches section 41 of the Employment Act
  • Enhancement of a fine already imposed to summary dismissal amounts to double jeopardy contrary to the principle of legality
  • An employer must have a valid reason to dismiss an employee under section 43 of the Employment Act

Court orders

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  1. 1.The summary dismissal is commuted to a normal termination with full entitlement to pension benefits for the 29 years' service
  2. 2.The Respondents to process the pension benefits due to the Plaintiff within 30 days from date of judgment
  3. 3.The Plaintiff is awarded costs of the suit
Jurisdiction invoked
Transferred from the High Court to the Employment and Labour Relations Court (Employment and Labour Relations Court jurisdiction over employment disputes)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Clement Mureithi v The Hon. Attorney General & Another [2015] KEELRC 537 (KLR)", Case Analysis (2015). Cause No 531 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/537/eng@2015-08-28

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