Seth & 2 others v Ministry of Interior and Coordination of National Government & 3 others (Petition E001 of 2024) [2024] KEELRC 1614 (KLR)
The bottom line
#Kenya's Employment Court ruled that dismissing workers because of disability, without a fair hearing, is discrimination that violates their constitutional rights.
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 was unfair termination of employment on the ground of discrimination
- 2.Whether the Respondents violated the Petitioners' rights to procedural fairness and natural justice by terminating without affording an opportunity to make representations
- 3.Whether the Respondents failed to consider reasonable accommodation of the Petitioners' disabilities
- 4.Whether the termination discriminated against the Petitioners on account of disability and assaulted their dignity
- 5.What remedies are available to the Petitioners
Key legal issues
#Existence of an employment relationship
The Petitioners were in an employment relationship with the Respondents, having applied, been interviewed, offered contracts as Content Supervisors for 27 days and taken through induction training
The court found it undisputed that the Petitioners applied for employment as Census officials, were interviewed, offered contracts as Content Supervisors for 27 days, and underwent induction training. On those facts it concluded that an employment relationship existed with the Respondents, bringing the dispute within the employment jurisdiction.
Procedural fairness in termination
The termination was procedurally unfair because the Respondents gave the Petitioners no opportunity to make representations before relieving them of duty on account of disability
The court held that the Respondents should at the very least have afforded the Petitioners an opportunity to make representations before deciding to terminate. Such opportunity is required by natural justice and procedural fairness demanded by Articles 41 and 236 of the Constitution. Had such an opportunity been given, reasonable accommodation might have been discussed.
Reasonable accommodation
The doctrine of reasonable accommodation applies in the employment arena and is statutorily recognised in sections 12 and 15(5) of the Persons with Disability Act, 2003
The court noted the doctrine is generally accepted in employment, citing MacNeill v Canada (Attorney General) and Lucy Chepkemoi v Sotik Tea Company Limited, and that it has statutory recognition in sections 12 and 15(5) of the Persons with Disability Act, 2003. The Respondents failed to consider it before terminating.
Discrimination on ground of disability
The termination singled out the Petitioners because of their disability and was discriminatory, assaulting their dignity
The disability of the Petitioners was obvious to the Respondents at recruitment, yet the Committee relieved them of duty citing the extent of their disability. The court held this isolated them for dismissal because of disability, failed the procedural fairness and reasonable accommodation tests, and constituted an assault on dignity warranting damages.
Legal principles established
#- Before terminating employment, an employer must afford the employee an opportunity to make representations, as required by natural justice, procedural fairness and Articles 41 and 236 of the Constitution
- Terminating employment on account of disability, without considering reasonable accommodation, is discriminatory
Court orders
#- 1.Declaration that the Respondents unfairly terminated the contracts of the 2nd and 3rd Petitioners
- 2.Declaration that the Respondents discriminated against the Petitioners on the ground of disability thus assaulting their dignity
- 3.Damages of Kshs 100,000/- each awarded to the 2nd and 3rd Petitioners, with interest at court rates from the date of judgment
- 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
- Petition transferred from the High Court at Kisii pursuant to Article 162(2)(a) of the Constitution as the dispute raised employment and labour relations questions
Relief refused
#Prayers (ii), (vii) and (xi) of the Amended Petition (deleted by the Petitioners themselves)
The Petitioners filed an Amended Petition on 29 January 2021 deleting prayers (ii), (vii) and (xi)
Costs
Each party to bear own costs, the Petition having been initiated as a matter of public interest
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 Court finds and declares that the Respondents unfairly terminated the contracts of the 2nd and 3rd Petitioners and also discriminated against them on the ground of disability thus assaulting their dignity.
The Court awards the 2nd and 3rd Petitioners damages of Kshs 100,000/- each. The awards to attract interest at court rates from the date of judgment.
The Petition was initiated as a matter of public interest and the Court directs each party to bear own costs.
This Court will therefore limit its discretion in addressing the question of whether there was unfair termination of employment on the ground of discrimination.
The Respondents should at the very least have afiorded the Petitioners an opportunity to make representations before making the decision to terminate.
Issues in the judgment
#The 2nd and 3rd Petitioners are referred to as having been employed, yet only two Petitioners (Frankline Ombasa and Elizabeth Lokooli) appear on record; the numbering of Petitioners is inconsistent internally
The court criticises the High Court's transfer Ruling while noting no appeal was filed against it
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Seth & 2 others v Ministry of Interior and Coordination of National Government & 3 others (Petition E001 of 2024) [2024] KEELRC 1614 (KLR)", Case Analysis (2024). Not stated in judgment (petition transferred from the High Court at Kisii). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1614/eng@2024-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.