Daniel Mutai v Attorney General & 3 others [2019] KEELRC 1549 (KLR)
The bottom line
#The Employment and Labour Relations Court dismissed an employee's constitutional petition because citing constitutional articles without facts, when the Employment Act already covers the dispute, does not work.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there are any constitutional issues raised in the petition.
- 2.Whether the termination of the petitioner's employment was for valid reason and complied with fair procedure.
- 3.Whether the petitioner is entitled to the remedies sought.
Key legal issues
#Whether constitutional issues were raised in the petition
No constitutional issues were raised; the dispute is contractual and the Employment Act provides adequate relief, so the court treats the claims as an ordinary claim
The petitioner merely cited articles of the Constitution without relating them to the facts, contrary to the Anarita Karimi Njeru principle. The employment relationship was contractual, governed by the contract and the Employment Act, which offers adequate remedies. Following David Ramogi, the constitutional petition cannot be used to bypass the statutory regime.
Whether the termination was for a valid reason
There was valid reason - the petitioner fraudulently manipulated payroll data and used irregularly deducted monies to service his Sacco loan and failed to explain this
The petitioner was dismissed for fraudulent manipulation of payroll data with unauthorized deductions remitted to his Sacco account. He was supplied with particulars and attributed the anomalies to human error, but could not explain how he serviced his Sacco loans without effecting deductions from his own salary. The accusation that he used irregularly deducted monies to service his loan was not satisfactorily answered.
Whether the termination complied with fair procedure
Fair procedure was followed - the petitioner was heard, responded to a show cause letter, appeared before the disciplinary committee and his appeal was heard; no bias was proved
The petitioner was given a hearing on 26th May and 27th June 2016 and an appeal hearing on 25th October 2016 after responding to the notice to show cause. The allegation that Mr. Kemboi sitting on both the disciplinary committee and the appeal created bias failed because no terms of service or regulations prohibited it and no evidence of actual bias was adduced; he sat in different capacities. Suspension before the show cause letter was proper to allow investigations, consistent with the CBA.
Legal principles established
#- In enforcement of fundamental rights and freedoms, a petitioner must plead with particularity the provision said to be infringed and the manner of violation
- Where a specific statutory mechanism exists for resolution of disputes, the Constitution is not meant to replace the statutory regime
- Suspension of an employee before issuance of a notice to show cause is proper to allow investigations
Court orders
#- 1.The entire petition is dismissed
- 2.Each party shall bear its costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 23 of the Constitution of Kenya 2010 (enforcement of Bill of Rights invoked by petitioner under Articles 2(1), 2(5), 3, 10, 20, 22, 23, 27, 28 and 41)
Relief refused
#Declaration that reduction of dismissal to termination was irrational, unconstitutional and unlawful
The reduction was made pursuant to the petitioner's appeal and for his benefit to enable him receive terminal benefits
Reinstatement
Petitioner failed to establish unfair termination
Twelve months' compensation, exemplary damages, NSSF contributions, pension, salary from March 2016, unutilized leave days
Not entitled for the same reason of failing to establish unfair termination
Costs
Each party shall bear its costs.
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 result is that the entire petition fails and is accordingly dismissed.
Each party shall bear its costs.
From the foregoing, I find that the respondents, had valid reason to dismiss the petitioner and that he was subjected to fair procedure.
I agree with the respondents that the relationship between the claimant and the respondents is contractual and that the provisions of the Employment Act provide adequate relief for the acts complained of.
Issues in the judgment
#The judgment inconsistently numbers the respondents, at times referring to Eldoret Water and Sanitation Company Limited as both the 2nd and 3rd respondent and to the Board of Directors as being in charge of the affairs of the '1st Respondent'
The disciplinary hearing date is given as 16th May 2016 in the narrative but 26th May 2016 in the determination on procedural fairness
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Mutai v Attorney General & 3 others [2019] KEELRC 1549 (KLR)", Case Analysis (2019). Constitutional Petition (ELRC), petition dated 30th January 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1549/eng@2019-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.