Ng'ang'a v Kenya National Examinations Council & another (Petition E197 of 2021) [2024] KEELRC 876 (KLR)
The bottom line
#A Kenyan court ruled a termination only counts when the employee actually receives the letter, awarding over Kshs 7 million for unfair dismissal.
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 suit by the Petitioner is time-barred
- 2.Depending on (a), whether there is a constitutional violation
- 3.Is the Petitioner entitled to the reliefs sought?
Key legal issues
#Whether the suit is time-barred under Section 90 of the Employment Act
The suit is not time-barred; the cause of action arose on 6th January 2019 when the Petitioner received the termination letter, and the Petition filed on 1st December 2021 was within three years
The 1st Respondent alleged the termination letter was delivered on 1st November 2017, exhibiting a delivery note whose date was illegible (possibly 1st, 3rd or 31st November 2017 - the latter a non-existent date). The court found the 1st Respondent failed to prove delivery. The Petitioner's contemporaneous letters seeking duties and salary bore receiving stamps of the 1st Respondent, whose forgery claim was unsupported by evidence. Following Alice Njambi Mutura, termination takes effect upon receipt of the letter.
Whether the Petitioner's rights under Articles 41, 47 and 236 of the Constitution were violated
Yes - the 1st Respondent violated her rights to fair administrative action, fair labour practices and due process protection for public officers
The Petitioner, a public officer, was terminated without prior notice of allegations, without an opportunity to be heard, and without notification of any right of review or appeal, contrary to Article 47, Section 4(3) of the Fair Administrative Actions Act and Section 41 of the Employment Act. The 1st Respondent also withheld her salary and failed to allocate duties without valid reason, violating Article 41. The 2nd Respondent contributed to the breakdown by supplying incomplete information about 'unresolved issues'.
Whether the Petitioner is entitled to the reliefs sought
Partially - declarations, withheld salary from December 2017 to January 2019, and Kshs 750,000 damages were awarded; reinstatement was not granted
The court granted declarations of violation, assessed damages at Kshs 750,000 by reference to comparable authorities (Atanda v JSC and Mbage v Hillcrest Investment Limited), and ordered payment of salary withheld from December 2017 up to 6th January 2019 when the Petitioner was notified of termination. The Petitioner was found to have been an employee until receipt of the termination letter.
Legal principles established
#- An employee's termination does not take effect until the letter of termination is in the hands of the employee; limitation under Section 90 of the Employment Act runs from the date of receipt, not the date the letter was authored
- A party alleging forgery of documents bears the burden of proving non-authenticity
Court orders
#- 1.A declaration is hereby issued that the 1st Respondent violated the Petitioner's rights enshrined under Articles 41, 47 and 236 of the Constitution
- 2.The Petitioner is entitled to salary withheld from December 2017 up to January 2019 being the sum of Kshs 6,318,444.00
- 3.The Petitioner is awarded the sum of Kshs 750,000.00 for violation of her constitutional rights
- 4.The total award is Kshs 7,068,444.00
- 5.The Petitioner shall have also the costs of this Petition, to be borne equally by the 1st and 2nd Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22(1), 41, 47, 232 and 236 of the Constitution of Kenya 2010; Employment Act Section 90; Fair Administrative Actions Act
Relief refused
#Reinstatement as Director, Corporate Services
Not expressly addressed in the final orders; the court awarded declarations, damages and withheld salary instead of reinstatement
Costs
The Petitioner shall have the costs of the Petition; for the avoidance of doubt, this shall be borne equally by the 1st and 2nd Respondents.
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.
Following cue, it is the Court's finding that the Petitioner's termination took efiect on the date she received the letter of termination. Therefore, and by dint of Section 90 of the Employment Act, the cause of action arose on 6th January 2019.
It is on account of the foregoing that I find that the Petitioner's right to due process and fair administrative action was violated by the 1st Respondent in that she was not notified of the allegations against her and was not given a chance to defend herself against such allegations.
It is this Court's considered view that failing to allocate duties to an employee without any valid reason and to remunerate her as contractually agreed, is no doubt an afiront to the principle of fair labour practices.
In the end, I enter judgment in favour of the Petitioner against the 1st Respondent in the following terms: a. A declaration is hereby issued that the 1st Respondent violated the Petitioner’s rights enshrined under Articles 41, 47 and 236 of the Constitution.
The Petitioner is awarded the sum of Kshs 750,000.00 for violation of her constitutional rights. d. The total award is Kshs 7,068,444.00.
Issues in the judgment
#The judgment refers to the relied-upon authority both as 'Alice Njmabi Mutura' and 'Alice Njambi Mutura' - inconsistent spelling of the same case
The letter dated 6th January 2019 is described both as a phone-call notification about a letter for collection by the Petitioner and, in the 1st Respondent's case, as a letter the Petitioner allegedly delivered which does not bear the official stamp - the judgment does not resolve the dual characterisation of this letter
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ng'ang'a v Kenya National Examinations Council & another (Petition E197 of 2021) [2024] KEELRC 876 (KLR)", Case Analysis (2024). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/876/eng@2024-04-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.