Kiiru v Ministry of Lands & Settlement & another (Cause 1560 of 2018) [2024] KEELRC 2824 (KLR)
The bottom line
#Kenya's Employment Court ruled a public servant's 1999 dismissal for reporting sexual harassment was unlawful, awarding her Kshs. 7.46 million in back pay.
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 parties were in a contract of service terminated by the dismissal letter dated 16.11.1999
- 2.Whether the claimant's dismissal was lawful, fair and with due procedure
- 3.Whether the claimant's grievance against Mr. Mathenge was justified and whether her dismissal was based on the sexual harassment complaint
- 4.What remedies, if any, are available to the claimant
Key legal issues
#Existence of a contract of service
The parties were in a contract of service terminated by the dismissal letter dated 16.11.1999, with effect from 05.05.1999 for gross misconduct with forfeiture of privileges and retirement benefits
The Court found no dispute between the parties that a contract of service existed and was terminated by the dismissal letter dated 16.11.1999. The letter recorded the Public Service Commission's decision dismissing the claimant for gross misconduct with effect from 05.05.1999 and forfeiting her privileges and retirement benefits. Both appeals to the Commission were unsuccessful.
Lawfulness and fairness of the dismissal
The dismissal was unfair, unlawful and violated due procedure because the claimant was required to answer charges already decided with finality (double jeopardy) and was dismissed for making a well-founded grievance of sexual harassment
The show cause letter of 22.07.1999 reopened matters already determined and punished by warnings or exculpation, which the Court held amounted to double jeopardy. The claimant's grievance against Mr. Mathenge was never investigated; instead she was directed to apologise. The respondents' own witness confirmed no disciplinary minutes existed, no hearing was held, and the dismissal letter gave no particulars of the gross misconduct. The claimant's unrebuted testimony established she was dismissed for reporting sexual harassment.
Remedies under the law prevailing at the date of dismissal
The dismissal was remedied as breach of contract by back payment of earnings computed at Kshs. 7,462,866.00, being what the claimant would have earned up to retirement on 05.12.2021; statutory unfair-termination compensation and pension were unavailable
As the Employment Act, 2007 was not in force at dismissal, section 12 compensation was unavailable. Constitutional violations were not proved. The Court adopted the unconteived computation of earnings to retirement date as a fair balance of justice in a case long delayed, holding that pension could not be computed because the claimant never retired. Special damages of Kshs. 148,739 were not expressly awarded in the final orders.
Legal principles established
#- Where an employee's disciplinary charges consist of matters already decided with finality, subjecting them to a further show-cause process amounts to double jeopardy and is unfair
- A grievance of sexual harassment by an employee must be investigated before the employee is required to apologise or face disciplinary action
- A dismissal letter must state the particulars of the misconduct relied upon
- Where the applicable law predates the Employment Act, 2007, unfair dismissal is remedied as breach of contract by placing the claimant in the position she would have occupied
Court orders
#- 1.Payment of Kshs. 7,462,866.00 by 01.08.2025 failing which interest to run thereon at Court rates from the date of the judgment until the date of full payment
- 2.The respondents to pay the costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (as pleaded and applied); first-instance employment claim
Relief refused
#Compensation for unfair termination under section 12 of the Employment Act, 2007
The Employment Act was not in force at the time of the dismissal
Damages for constitutional violations
No specific constitutional violations were shown to have been breached
Pension under the Pensions Act
The claimant did not retire, so pension could not be computed or paid under the Pensions Act
Costs
The Court has considered the margins of success and the respondents to pay costs of the suit.
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.
Such amounted to double jeopardy and it was unfair.
There appears to be no basis for asking the claimant to apologise because no investigation or inquiry appears to have taken place to show that the grievance was unfounded as baseless.
In any event, the dismissal letter failed to narrate the particulars of gross misconduct that justified the dismissal.
the dismissal amounted to breach of contract and the best the Court can do is to place the plaintifi in a position she would be had she not been unfairly or unlawfully dismissed.
Payment of Kshs. 7, 462, 866.00 by 01.08.2025 failing interest to run thereon at Court rates from the date of this judgment until the date of full payment.
The payment of costs of the suit.
Issues in the judgment
#Judgment text contains OCR-type spelling artefacts (e.g. 'plaintifi', 'efiect', 'fiimsy') and internal date errors, e.g. 'falsification of attendance register on 01.09.1999 (meaning 1997)' and 'on 03.05.202 her boss, Mr. Maina ... assaulted her'
Contradictory statement on the prescribed interdiction period
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiiru v Ministry of Lands & Settlement & another (Cause 1560 of 2018) [2024] KEELRC 2824 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2824/eng@2024-11-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.