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ELRCPartially AllowedELRC Cause No. 1403 of 2018· [2024] KEELRC 1016 (KLR)

Maina v Attorney General & another (Employment and Labour Relations Cause 1403 of 2018) [2024] KEELRC 1016 (KLR)

Employment & Labour Relations Court
18 April 2024
MNMathews Nderi Nduma
1,301 words in judgment
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The bottom line

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Kenya's Employment Court awarded a former civil servant Kshs. 5 million because the Public Service Commission dismissed him without notice, a hearing, or a valid reason.

What this practically means

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Executive summary

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Michael Maina sued the Public Service Commission of Kenya, initially in the High Court on 21st July 2011, with the suit later transferred to the Employment & Labour Relations Court as ELRC Cause No. 1403 of 2018. He claimed terminal dues, reinstatement without loss of benefits, general damages, interest and costs, alleging that in 2007 he was summarily dismissed as a personnel officer in the Kisii District Commissioner's office over the alleged leaking of confidential information regarding an assistant chief's appointment, without notice or a disciplinary hearing, and that his appeal to the Commission was never decided. The plaintiff testified and was cross-examined; the respondent filed a defence but called no witness. The court framed two issues: whether the plaintiff proved his case on a balance of probability, and whether he was entitled to the reliefs sought. Applying sections 107 and 108 of the Evidence Act, the court held the employee bears the burden of proving unfair termination and the employer the rebuttal onus. The uncontradicted evidence established dismissal without valid reason and without fair procedure, contrary to the repealed Employment Act. Guided by Mary Chemweno Kiptui v Kenya Pipeline and Pius Machafu Isuindu v Lavington Security Guard, the court found the dismissal unlawful and unfair and the plaintiff innocent of misconduct. Considering his service from 1996 to 2007, aggravated circumstances, and loss suffered, and noting reinstatement was no longer plausible, the court awarded Kshs. 5 million in general damages with interest from the date of judgment, and ordered the respondent to pay the costs of the suit.

Key legal issues

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01

Burden of proof in unfair termination claims

Holding

The employee bears the onus of proving unlawful and unfair termination; the employer bears the rebuttal onus, which it failed to discharge by not adducing evidence

Reasoning

Relying on sections 107 and 108 of the Evidence Act, the court held the plaintiff had to prove his employment was unlawfully terminated. The defendant filed a statement of defence but called no witness, leaving the plaintiff's uncontradicted evidence that he was dismissed without notice, without a disciplinary hearing and without a valid reason. The dismissal was therefore unlawful and unfair under the repealed Employment Act applicable in 2007.

p. 2
02

Fair hearing before dismissal

Holding

Summary dismissal without notice or opportunity to be heard violates the right to fair hearing and the repealed Employment Act

Reasoning

The plaintiff testified he was never called to a disciplinary hearing to explain his innocence and was dismissed without notice. Following Mary Chemweno Kiptui v Kenya Pipeline Company Limited, the court held a fair procedure was mandatory even under the repealed Employment Act, and the plaintiff was entitled to damages for breach of his right to fair hearing.

p. 3
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Quantum of damages

Holding

General damages of Kshs. 5 million awarded as a lump sum, taking into account length of service, aggravated circumstances, loss and passage of time

Reasoning

The court considered the plaintiff's service from 1996 to 2007, his innocence, the summary dismissal without notice or terminal benefits, the respondent's failure to decide the appeal, loss of income and inability to obtain alternative employment, and currency depreciation. Reinstatement was no longer plausible, so a lump sum of Kshs. 5 million was awarded with interest.

p. 4

Legal principles established

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  • An employer must follow a fair procedure before terminating the employment contract of an employee, and bears the burden of proving valid and fair reasons for summary dismissal

Court orders

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  1. 1.Award of Kshs. five (5) million in general damages for unlawful and unfair dismissal
  2. 2.Interest on the damages at court rates from date of judgment till payment in full
  3. 3.Respondent to pay the costs of the suit
Jurisdiction invoked
Transferred from the High Court to the Employment & Labour Relations Court as an employment cause

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Maina v Attorney General & another (Employment and Labour Relations Cause 1403 of 2018) [2024] KEELRC 1016 (KLR)", Case Analysis (2024). ELRC Cause No. 1403 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1016/eng@2024-04-18

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