Peter Akure Lothike v Public Service Commission & 3 others [2021] KEELRC 1431 (KLR)
The bottom line
#A Kenyan court ruled a public officer's dismissal was procedurally flawed but refused reinstatement, ordering only payment of his unpaid wages.
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 petition should have been instituted as a Memorandum of Claim rather than a constitutional petition
- 2.Whether the termination of the petitioner's employment was effected through a fair procedure consistent with section 41 of the Employment Act and Article 236 of the Constitution
- 3.Whether the backdating of the dismissal to 20th November 2015 was lawful
- 4.Whether reinstatement could issue
- 5.What remedies, if any, were available
Key legal issues
#Whether the constitutional petition was the proper vehicle for the claim
No; the dispute over termination of employment and reinstatement ought to have been raised through a Memorandum of Claim under the ELRC (Procedure) Rules, 2016, and framing it as a constitutional petition is an abuse of court process
The court noted a proliferation of petitions that should have been claims. Rule 7(3) of the ELRC (Procedure) Rules, 2016 allows constitutional questions to be addressed in a Memorandum of Claim. Reinstatement is regulated by the ELRC Act, 2011 and section 49 of the Employment Act, 2007, and cannot issue outside statutory timelines merely because a party couches it as a constitutional violation. Filing a petition to avoid the requirements of the law is an abuse of process.
Whether the dismissal was procedurally fair
The dismissal was procedurally unfair because the petitioner, though issued a notice to show cause, was not invited to a hearing before the decision to dismiss was taken at the meeting of 21st June 2018
The petitioner was interdicted, given a show cause notice to which he replied in writing, but the meeting of 21st June 2018 that decided dismissal did not hear him in the presence of another employee of his choice as mandated by section 41 of the Employment Act. No exceptional circumstances excusing compliance were addressed. The failure offended sections 41 and 45(2)(c) and 45(5)(a) of the Employment Act and Article 236(b) of the Constitution, rendering the termination unfair.
Whether the backdated dismissal was lawful
The backdating of the dismissal from 17th August 2018 to 20th November 2015 was unlawful double punishment not supported by any law or the disciplinary decision
The letter of dismissal dated 17th August 2018 took effect from 20th November 2015, the date of the criminal charge. The court found no legal basis or disciplinary resolution supporting the backdating, noting the respondents kept the petitioner on interdiction and in employment until 17th August 2018, and nothing stopped them from addressing the misconduct immediately upon the criminal charge.
Whether reinstatement should issue
Reinstatement was refused because there existed valid reasons for dismissal, the petitioner being a convicted offender whose appeal was lost under sections 43 and 44(4) of the Employment Act
Although the termination was procedurally unfair, valid reasons existed: the petitioner was convicted of assault and unlawful confinement and his appeal and application for extension of time were lost. Reinstating a person dismissed for criminal conduct would be contrary to good order and the rule of law.
Legal principles established
#- A constitutional petition cannot be used as a general substitute for normal procedures where remedies exist under substantive employment law
- Even where an employer has valid reasons to terminate employment for gross misconduct following a criminal conviction, compliance with the mandatory hearing procedure under section 41 of the Employment Act is required
- Backdating a dismissal without legal basis or a decision of the disciplinary meeting amounts to unjustified double punishment
Court orders
#- 1.Petition found without merit save that the petitioner shall be paid his due wages remaining unpaid for the period ending 17th August 2018
- 2.Such wages to be assessed and paid by the 1st respondent within sixty (60) days
- 3.Where there is no payment, the dues owing, if any, to attract interest at court rates
- 4.Each party to bear own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 10, 22, 23, 41, 43, 47 and 232 of the Constitution invoked by the petitioner; Employment and Labour Relations Court Act, 2011 and Employment and Labour Relations Court (Procedure) Rules, 2016
Relief refused
#Declaration that the termination of service as assistant chief was in contravention of fair labour practices and unconstitutional
The dispute should have been brought as a Memorandum of Claim and the summary dismissal, though procedurally flawed, was founded on valid reasons of gross misconduct following a criminal conviction
Reinstatement as assistant chief Kang'risae sub location
The petitioner is a convicted offender; reinstatement would be contrary to good order and the rule of law, and the remedy cannot issue outside set timelines
Payment of unpaid wages as quantified in the petition
No material was placed before the court to assess the unpaid wages; assessment can be done at the shop floor
Costs
Each party shall bear 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.
Accordingly, the petition is found without merit save the petitioner shall be paid his due wages and which remain unpaid for the period ending 17th August, 2018. Such shall be assessed and paid by the 1 st respondent within sixty (60) days. Where there is no payment, the dues owing, if any, shall be paid with interests at court rates. Each party shall bear own costs.
The Constitution is not a general substitute for the normal procedures for invoking judicial control of administrative action. Where infringements of rights can found a claim under substantive law, the proper cause is to bring the claim under that and not under the Constitution
Even where the employer has a valid and good cause to terminate employment, the motion of section 41 of the Employment Act, 2007 are mandatory. Following the notice to show cause, the petitioner ought to have been allowed a hearing in the presence of another employee of his choice.
Such double punishment is not justified. Nothing stopped the respondents from addressing any arising misconduct of the petitioner immediately he was charged in Lodwar Principal Magistrates Courts with a criminal offence.
to order reinstatement back into employment of the respondent would be contrary to good order and rule of law.
Issues in the judgment
#Conflicting dates for receipt of the show cause notice: petitioner testified he received it on 20th May 2017 but elsewhere the court records it as issued 6th March 2017 with reply on 24th May 2017
Interdiction date stated variously as 8th January 2016 and 6th January 2016
Inconsistent statement on date of receipt of dismissal letter - petition says letter dated 17th August 2018 was received 20th May 2017, an impossible chronology
Petitioner's own testimony appears to accept that a hearing was given after conviction, in tension with his claim of no fair hearing
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Akure Lothike v Public Service Commission & 3 others [2021] KEELRC 1431 (KLR)", Case Analysis (2021). Petition No. E042 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1431/eng@2021-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.