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ELRCPartially AllowedPetition No. 17 of 2015

Josephat Alusiola Musambayi v Vihiga County Assembly & another [2016] KEELRC 97 (KLR)

Employment & Labour Relations Court
24 November 2016
MOMaureen Onyango
5,015 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~20 min to read original · ~4 min brief

The bottom line

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Vihiga County Assembly unlawfully fired its Clerk without a fair hearing and must pay him millions in compensation.

What this practically means

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Executive summary

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The Petitioner, formerly Clerk of the Vihiga County Assembly (sworn in on 14th January 2014), challenged his suspension on 18th April 2015 and termination by letter dated 17th July 2015, seeking declarations that both were unlawful and unconstitutional, orders protecting his access to office, payment of withheld salaries and benefits, and costs. He argued only the County Assembly Service Board could discipline him, that the disciplinary process violated section 41 of the Employment Act, Articles 41, 47 and 236 of the Constitution and the Fair Administrative Action Act, and that recruitment of his successor during the petition breached lis pendens and court orders. The Respondents maintained the process was lawful and that the Petitioner declined to respond to notices or appear before an Ad Hoc Committee. The court found the suspension was by an unauthorised body, that no notice of the allegations preceded disciplinary action, that the Ad Hoc Committee excluded the Petitioner from interviews so that he was condemned without a hearing, and that the 12 generalised charges made effective response impossible, evidencing a sham process. It held the Respondents violated section 41 of the Employment Act and Articles 41, 47 and 236 of the Constitution. On lis pendens, the court noted disobedience of its interim orders but found those orders were compromised when parties abandoned pending applications on 15th March 2016. Although the Petitioner proved entitlement to reinstatement, the court declined it as impracticable and against his and the public interest, and instead awarded compensation: Shs.5,000,000 for breach of fundamental rights, 12 months' gross salary for loss of employment, full withheld salary and allowances to the date of termination, full terminal benefits, interest, and costs of the petition. The petition was partially allowed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether termination of the employment of the petitioner was lawful, valid and legitimate and whether the 1st Respondent was seized of the requisite capacity to commence/sustain disciplinary proceedings against the petitioner
  2. 2.Whether the filling of the position of the Petitioner is barred by the doctrine of Lis Pendence
  3. 3.What remedies are available to the Petitioner

Key legal issues

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01

Lawfulness of the suspension and disciplinary capacity

Holding

The suspension was by an unauthorised body (a letter signed by Hon. David Ogora Mulanyi as 'chairman' of an unspecified body) and no notice of the allegations was given to the Petitioner before disciplinary action; only the County Assembly Service Board could discipline the Clerk

Reasoning

Under section 13 of the County Government Act the Clerk is an office in the County Assembly Service Board and secretary to the Board, whose duties include appointment and supervision of office holders. The suspension letter did not disclose which body Hon. Mulanyi chaired, no minutes of the meeting were availed, and the issues in the suspension letter were never brought to the Petitioner's attention for a response before action was taken.

p. 6
02

Right to a fair hearing before termination

Holding

The Petitioner was condemned without a hearing; the Ad Hoc Committee's interviews did not include him and no invitation to a disciplinary hearing before the 2nd Respondent was evidenced, violating section 41 of the Employment Act and Articles 41, 47 and 236 of the Constitution

Reasoning

The Committee interviewed 15 individuals, excluding the Petitioner, and gave no dates or notification of his alleged failure to appear. The termination letter referred to a Board meeting of 16th July 2015 with no mention of inviting the Petitioner. The Respondents simultaneously asserted he was heard and that he declined to defend himself. The 12 charges in the termination letter (versus 8 in the suspension letter) were so general as to make effective response impossible, evidencing a predetermined process.

p. 7
03

Lis pendens and recruitment of a successor

Holding

Although the Respondents evidently disobeyed court orders restraining recruitment, the orders of 19th August 2015 and 7th January 2016 were compromised when the parties abandoned all pending applications on 15th March 2016, and the court declined to rule further on lis pendens

Reasoning

The court affirmed the obligation to obey court orders until discharged, citing Chuck v Cremer and Hadkinson v Hadkinson, and noted it had granted leave for contempt proceedings. However, both orders were compromised by the parties' agreement of 15th March 2016 to abandon all pending applications and canvass the petition by written submissions, so the court said no more on lis pendens.

p. 9
04

Remedy: reinstatement versus compensation

Holding

Although the Petitioner proved his case and was entitled to reinstatement, the court declined reinstatement as impracticable and against his and the public interest, and instead awarded compensation under section 49(4) of the Employment Act

Reasoning

The court found the termination a well-orchestrated and collusive decision, evidenced by the timing of the suspension, the framing and number of charges, disobedience of court orders and the filling of the position in disregard of orders. Nonetheless, judicial notice was taken that the Clerk serves both the County Assembly and the County Public Service Board, and imposing a clerk without the support of both would set the stage for conflict. Section 49(4) required consideration of practicability before ordering reinstatement.

p. 9

Legal principles established

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  • The Clerk of a County Assembly can only be disciplined by the County Assembly Service Board, not by the County Assembly or a select committee
  • Suspension by an unauthorised body without putting the allegations to the employee for a response is irregular and without due process
  • Framing numerous overly general charges against an employee effectively denies a fair hearing and suggests a sham disciplinary process
  • A person who knows of a court order must obey it until it is discharged or varied, even if believed irregular or void

Court orders

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  1. 1.Declaration that the suspension of the Petitioner as Clerk of Vihiga County Assembly was null and void
  2. 2.Declaration that the termination of the Petitioner's employment was a violation of his fundamental and statutory rights under Articles 41, 47 and 236 of the Constitution and section 41 of the Employment Act
  3. 3.The Respondents jointly and severally to pay the Petitioner Shs.5,000,000 as compensation for breach of his fundamental rights
  4. 4.The Respondents jointly and severally to pay maximum compensation of 12 months gross salary for loss of employment
  5. 5.The Respondents to pay the Petitioner full salary and allowances withheld from the date of suspension to the date of termination
  6. 6.The Respondents to pay the Petitioner full terminal benefits including notice and any earned leave earned up to the date of termination
  7. 7.The Respondents to pay the Petitioner's costs of the petition
  8. 8.The decretal sum to attract interest from the date of judgment
  9. 9.Reinstatement refused; compensation granted instead

The bench

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One judgment of the whole court — no separate or dissenting opinions.

MO
majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and constitutional rights disputes under Articles 41, 47 and 236 of the Constitution; petition filed in the Employment & Labour Relations Court

Relief refused

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Reinstatement to the office of Clerk of Vihiga County Assembly

Although the Petitioner proved his case and was entitled to reinstatement, the court found it may not be in the interest of either the Petitioner or the public, having regard to the breakdown of relations and section 49(4) of the Employment Act requiring consideration of practicability

p. 9

Order to refrain from ejecting or blocking access to the office (in effect, by reason of the refusal of reinstatement)

Subsumed in the refusal of reinstatement

Revocation of the appointment of the successor clerk on grounds of lis pendens

The court held the interim orders had been compromised when parties abandoned all pending applications on 15th March 2016 and declined to say more on lis pendens

p. 9

Costs

The Respondents shall pay the Petitioner's costs of the petition

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I find and hold that the Respondents failed to comply with the provisions of section 41 of the Employment Act and further violated the Petitioner's Constitutional rights under Article 41, 47 and 236 of the Constitution.
p. 7Violation of fair hearing and constitutional rights
I find that the suspension of the Petitioner was by an unauthorised body and was irregular as the issues raised in the letter had not been brought to the attention of the Petitioner for him to respond to before disciplinary action was taken against him.
p. 7Unauthorised suspension and denial of hearing
Crowding a person with so many general charges as to cause him difficulty in responding to the charges amounts to denying the person a fair hearing, and also gives the impression that the disciplinary process is a sham intended to get rid of him at all costs.
p. 7Generalised charges deny fair hearing
The foregoing means that the Petitioner was condemned without a hearing.
p. 7Disciplinary report excluding the employee
I am hesitant to grant the said orders because it may not be in the interest of either himself or the public.
p. 9Discretion against reinstatement
The Respondents shall pay petitioners costs of the petition.
p. 9Final orders - costs
The sum of Shs.5,000,000 being compensation for breach of the Petitioner's fundamental rights.
p. 9Final orders - compensation for breach of fundamental rights
Maximum compensation of 12 months gross salary being compensation for loss of employment.
p. 9Final orders - compensation for loss of employment

Issues in the judgment

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minor

The list of applications stated as abandoned on 15th March 2015 includes applications dated after that date (16th December 2015 and 7th March 2016), an internal inconsistency in dates

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Josephat Alusiola Musambayi v Vihiga County Assembly & another [2016] KEELRC 97 (KLR)", Case Analysis (2016). Petition No. 17 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/97/eng@2016-11-24

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