Fredrick Odhiambo Walukwe v Cabinet Secretary, Ministry of Interiorand Co-ordination of National Government & 2 others [2020] KEELRC 27 (KLR)
The bottom line
#A Kenyan civil servant wrongly dismissed after a six-year disciplinary saga won reinstatement because his employer couldn't prove its case or follow fair procedures.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimant's interdiction and the subsequent dismissal and the proceedings leading thereto were unfair and unlawful
- 2.Whether the Claimant is entitled to the reliefs sought
Key legal issues
#Validity of the reason for interdiction and dismissal
The Respondents did not prove a valid reason; the investigations report and DCI report forming the basis of the disciplinary action were never produced in court, contrary to sections 43 and 45 of the Employment Act
Despite alleging gross misconduct and receipt of Kshs. 92,000 from Hussein Adan, the Respondents did not produce the investigations report or DCI report. Rw2 admitted the DCI report could be produced on a court order. Failure to avail the evidence underlying the adverse action meant the reason for termination was unproved under sections 43 and 45 of the Employment Act.
Procedural fairness of the disciplinary process
The summary dismissal was procedurally unfair; failure to accord an oral hearing with a fellow employee contravened section 41 of the Employment Act, and Regulation 33 of the PSC Regulations 2005 was obsolete in so far as inconsistent with the Act
Regulation 33 of the PSC Regulations 2005 did not require an oral hearing, predating the Employment Act 2007, and was held obsolete to the extent of inconsistency with the Act and the Constitution. Exchange of letters is an exception, not the rule; fairness also required availing requested documents to the Claimant, contrary to natural justice.
Contempt of the Court order of 5.2.2016
The Respondents were in contempt of the order requiring conclusion of the disciplinary process within 60 days; they neither appealed nor sought review/extension, so subsequent proceedings were a nullity
The court order of 5.2.2016 required the disciplinary process to be concluded within 60 days. The Respondents failed to comply, did not apply for extension, and dismissed the Claimant after the lapse of the period, later rescinding and opening fresh charges. Continuing the process after the 60 days was contemptuous and a nullity.
Mandate to retire a Job Group M officer in the public interest
Only the Public Service Commission, not the authorised officer acting on MHRMAC recommendation, could retire the Claimant in the public interest under Regulation 33(9) of the PSC Regulations 2005
The Claimant was in Job Group M. Regulation 33(9) vests in the Commission the power to decide the punishment or whether the officer should be retired in the public interest. The authorised officer acting on MHRMAC recommendation therefore had no legal mandate to make that final determination.
Delay and fair administrative action
Disciplinary proceedings lasting six years were procedurally unfair and violated Articles 47 and 41 of the Constitution
From interdiction in December 2014 through interdiction, retirement notice, dismissal, rescission, fresh charges, reinstatement in October 2018 and continued disciplinary threats into 2020, the process spanned six years, contrary to the right to expeditious, efficient, lawful, reasonable and procedurally fair administrative action.
Legal principles established
#- An employer must prove the reason for termination; a reason is valid only if supported by evidence produced before the court (sections 43 and 45, Employment Act)
- Oral hearing in the company of a fellow employee under section 41 of the Employment Act is a right that an employer cannot take away; exchange of correspondence is an exception, not the general rule
- Prolonged disciplinary proceedings violate the right to expeditious administrative action under Article 47 and fair labour practices under Article 41 of the Constitution
- Disobedience of a court order, without appeal, review or application for variation, renders subsequent disciplinary action a nullity/contempt
Court orders
#- 1.Declaration that the decision to retire the Claimant in the public interest and the process leading to that decision was unfair and in contravention of his right to fair labour practices, fair administrative action and fair hearing
- 2.Declaration that the authorised officer acting on the recommendation of the MHRMAC has no legal mandate to retire the Claimant or make a final determination in disciplinary proceedings concerning the Claimant, a public officer in Job Group M
- 3.Nullification/setting aside of the preliminary decision by the authorised officer to retire the Claimant in the public interest
- 4.Reinstatement confirmed - the interim reinstatement order of 3.10.2018 confirmed without loss of benefits (prayers 4 and 5 granted)
- 5.Permanent injunction restraining the Respondents from commencing or continuing any disciplinary process originating from or connected to the interdiction letters dated 18.12.2014 and/or 3.7.2018 in so far as the same is proceeding in contempt of the Court order dated 5.2.2016 and contrary to the Claimant's constitutional and statutory rights
- 6.Finding that the Respondents are in contempt of the Court order dated 5.2.2016
- 7.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Employment and Labour Relations Court under the Employment Act and the Constitution (Articles 41, 47 and 236 engaged)
Relief refused
#Exemplary damages
The Claimant had already been reinstated to his position as Chief Immigration Officer and later promoted to Principal Immigration Officer in charge of Eldoret International Airport
Costs of the suit
Although costs should follow the events, the parties are enjoying their employment relationship once again
Costs
Each party to bear his or her own 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.
I therefore find that the Respondent has not proved that there was a valid reason for the interdiction and the subsequent dismissal of the Claimant as required under section 45 of the Employment Act.
Consequently, I find that the failure to accord an oral hearing to the claimant in the presence of a fellow employee as envisaged under section 41 of the Act rendered the summary dismissal procedurally unfair.
The correct position is that oral hearing in the company of a fellow employee is a right expressly provided by the law and unless the employee waives it, the employer and the court for that matter cannot take it away save where the employee admits the charges in the correspondences exchanged.
The court agrees with the claimant that such prolonged disciplinary proceedings are procedurally unfair and also violates his rights to fair labour practices as envisaged under Article 41 of the Constitution.
I agree with the claimant that his dismissal and continued disciplinary process against him in violation of the court order dated 5.2.2016 was and still is unlawful, unfair and a nullity.
Accordingly, I make declaration that the decision to retire the claimant in the public interest and the process leading to that decision was unfair and in contravention of his right to fair labour practices, fair administrative action and fair hearing.
Consequently, I grant the prayer for permanent injunction restraining the respondent from commencing, or continuing with any disciplinary process originating from or connected to the interdiction letter dated 18.12.2014 and/or 3.7.2018 against the claimant in so far as the same is proceeding in contempt of the Court order dated 5.2.2016 and contrary to his rights under the Constitution and the said statute law.
Finally, though costs should follow the events, I will direct each party to bear his or her own costs because as already observed above, the parties are enjoying their employment relationship once again.
Issues in the judgment
#The name of the Claimant does not appear anywhere in the judgment text supplied; the caption/parties are described only by role
The cause number of the suit is not stated in the judgment text
Internal inconsistency in dates: the interdiction response letter is variously dated 31.12.2014 and 31.12.2015
Internal inconsistency in dates: the court order is referred to as dated 5.2.2016 and elsewhere as 5.2.2015
Inconsistent reference to the claimant's request letter as dated 17.7.2018 and 17.7.2014
Typographical errors indicating the digitisation of the judgment, e.g. 'Whetehr the interdiction, dismissal and the process was unfair and unlawful.'
The related case party name appears as both 'Felicina Wanjira Ndirangu' and 'Felicina Wanjira Ndwiga'/'Felisina Wanjira Ndwiga' within the same judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fredrick Odhiambo Walukwe v Cabinet Secretary, Ministry of Interiorand Co-ordination of National Government & 2 others [2020] KEELRC 27 (KLR)", Case Analysis (2020). Not stated in the judgment text (Cause number not reproduced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/27/eng@2020-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.