Kenya Law Weekly Issue 008/24-25

Held:

1. Article 258(1) of the Constitution granted the petitioner the right to institute proceedings in relation to violation of his rights. Article 23(1) of the Constitution conferred the court with jurisdiction to determine whether a right conferred in the Constitution had been violated. The jurisdiction of the court flowed from article 165(3)(d) of the Constitution. To that extent, the issues raised by the petitioner fell under the purview of the jurisdiction of the court.
2. The burden of proving violation or threat of violation of a constitutional right was upon the petitioner. A petitioner must satisfy the evidential burden that a specific right existed and which right had been violated or restricted, besides pleading the same with reasonable particularity and precision. In addition, the petitioners must patently express the manner in which the respondents had violated their rights. The petitioner’s grouse was that the respondents failed to act on the County Environment Management and Coordination Bill which he presented to them for consideration and enactment.
3. Article 37 of the Constitution conferred the right to demonstrate, picket and present petitions to public authorities. A purposive interpretation of article 37 would require that any public body in receipt of a petition as envisaged by the article must make the necessary step of acting on the petition, which acting included, but not limited to, responding formally to a petitioner on the action taken or reasons why the petition would not be acceded to. Otherwise, if the contrary was true, the right conferred under article 37 would not be realised.
4. The record did not show any communication from the 2nd respondent indicating whether the Bill was rejected, and if so, the reasons proffered thereto. Evidence available was of the very casual, contemptuous and dismissive letter by the Clerk to the County assembly dated November 26, 2019, whose content was that the Assembly was a stranger to the issues raised in the petitioner’s 1. letter dated November 22, 2019. The Constitution frowned upon such exercise of authority which was heavily laced with the big man syndrome which syndrome was cast to oblivion by the recognition in the Constitution that all sovereign power belonged to the people.
5. From the record, the foundation of the violations was the alleged failure by the respondents to enact the law. Other than mere recitals of the alleged violations, no evidence at all was laid before court in proof of the same.
6. It was not within the province of the court to decide if or not there existed a lacuna of a county legislation on environmental issues. That was power to be exercised by the people of Laikipia County through their elected representatives in the County Assembly. Through the petition, the petitioner had attempted to tout the strength of his proposed bill. The court only intervened in legislation, be it national or local, only when there were procedural flaws or the enacted law was unconstitutional. Legislation making was a preserve of Parliament at the national level and county assemblies at the county level. Good laws were a pillar of society in all spheres of peoples’ social and economic activities.
7. The Constitution obligated the State and all State organs to ensure adequate public consultation on all public policies, legislation or any decision that was likely to impact on the people of Kenya. Failure to factor in the mandatory requirement of public participation exposed the legislative instrument or policy framework to constitutional challenges of legitimacy, hence making it actionable for unconstitutionality in a court of law. The requirement for public participation should not obfuscate the doctrine of separation of powers which was the bedrock of a democratic society.
8. The mandate to legislate was exclusive and neither the Executive nor the Judiciary should interfere. The court, however, had the mandate to oversee the legality of the law-making process and the constitutionality of the enactment. The petitioner had mixed up issues of the respondents’ failure to act on the Bill with issues pertaining to the need and merits of the proposed law. The court could only come to his aid in regard to any flouting of procedure by the respondents or where a law inconsistent with the constitution was passed but must eschew any attempt to suggest to, leave alone order, the respondents on what legislation to pass or not to pass.
9. The respondents failed to respond with reasons to the petitioner why his Bill was rejected. Although the petitioner had pleaded violations of the Constitution, he had not demonstrated to the required standard how his individual rights and fundamental freedoms were violated, infringed or threatened by the respondents. He had not adduced any evidence to demonstrate the alleged violations. He was however entitled to a fair administrative action which included to have written reasons why the Bill was rejected.

Petition partly allowed.

Orders

1. The respondents were obligated to receive the Bill and subject it to usual consideration and make a decision on it which decision should be communicated to the petitioner. The petitioner shall, to achieve that, be at liberty to re-submit the Bill for that purpose.
2. Each party to bear its own costs.

Held:

1. Section 42(1) of the Employment Act deprived employees serving on probationary contracts the protection that was granted to employees serving on confirmed contracts of service when it came to termination of employment. Whilst an employee who was serving under a confirmed contract of service could not be dismissed from service without cause, an employee who was serving on probation was not entitled to similar protection.
2. The Employment Act was enacted in 2007, that was well before the Constitution of Kenya, 2010 was promulgated. Article 41 of the Constitution protected the right to fair labour practice. Article 47 of the Constitution protected the right to fair administrative action, that right also applied to employment relations. Article 27 of the Constitution prohibited discrimination including at the workplace. Similarly, the article guaranteed everyone the right to equal benefits of and protection by law.
3. Section 42(1) of the Employment Act sanctioned differential treatment of employees serving on probationary terms. The provision denied those employees equal protection and benefit of the law. The section was not only discriminatory against employees on probation but also offended their right to fair labour practice. In so far as it purported to sanction their release from employment without giving them the reasons for the decision, the section was also inimical to those employees’ right to fair administrative action. Section 42(1) was contrary to the Constitution.
4. In order to remain relevant in the statute books, section 42(1) of the Employment Act must be read with the necessary adjustments as directed by section 7(1) of the Sixth Schedule to the Constitution. That meant that the section must be understood as not depriving employees serving on probationary contracts of the right to be heard before their contracts of service can be terminated. The suggestion that the claimant was not entitled to a hearing before his contract was terminated was flawed and was rejected.
5. Termination of the claimant’s contract of service happened on January 24, 2019. That was long after the six (6) months probationary period in the contract had lapsed. The respondent’s assertion that the claimant’s reassignment to a new role in June 2018 reset his probationary period was a misinterpretation of not just the law on the subject but also the documents through which the parties contracted. As a matter of fact, the claimant’s letter of reassignment contained no clause that could justify the respondent’s conclusion on the subject.
6. From the evidence on record, the basis for the respondent’s decision to terminate the claimant’s contract of service was that he was guilty of poor performance. Although the respondent claimed that the claimant had been cautioned about his poor performance, there was no evidence that he was taken through a formal disciplinary process that was contemplated under section 41 of the Employment Act before his contract of service was terminated. There was no evidence that the respondent formally notified the claimant that it proposed to terminate his contract of service on grounds of poor performance and invited him to respond to the charge in terms of section 41.
7. Section 41 of the Employment Act required the employer to subject an employee to a disciplinary session before terminating the employee’s contract of service on grounds of misconduct, poor performance or physical incapacity. The employer was obligated to notify the employee of the charge, allow the employee the opportunity to respond to the charge and hear the representations of the employee together with his witnesses before making a decision on the matter. The respondent failed to uphold those requirements of law under the misguided belief that the fact that the claimant was allegedly on probation relieved it of that obligation.
8. The meeting to which the respondent’s manager summoned the claimant on the morning of January 23, 2019 to demand that the claimant either resigned or his contract was terminated did not qualify as a disciplinary session contemplated under section 41 of the Employment Act. Consequently, the respondent’s decision to terminate the claimant’s contract on account of poor performance was procedurally flawed.
9. Despite the claimant denouncing the signature on the discharge voucher, the respondent did not take steps to authenticate it. In the face of that lacuna, the court could not determine the validity of the discharge voucher. The court declined to make any findings on the effect of the discharge voucher in question including whether the signatures on it were procured genuinely or through fraud. Those were matters that the parties did not plead in their respective pleadings.
10. An employee whose contract of service was unfairly terminated was entitled to claim any of the reliefs under section 49 of the Employment Act. Those reliefs did not include salary for the employee’s unexpired term of contract. However, the employee may claim compensation capped at a maximum of twelve (12) months of his salary. Although section 49 set out the main reliefs that the Employment and Labour Relations Court may grant, those were not the sole remedies that the court could grant. In addition to those remedies, the court had power to grant the remedies sanctioned by section 12 of the Employment and Labour Relations Court Act.
11. It would be speculative for the court to sanction payment of salary for the unexpired term of an employment contract as such order overlooked the reality that some unforeseen occurrences such as death and other acts of God could occasion premature closure of the contract. Consequently, such order would be inimical to justice. The court may only award an employee salary for the unexpired term of his contract of service in instances where the contract between the parties had sanctioned the remedy.
12. Although the claimant did not plead for compensation capped at twelve (12) months, he had asked the court to grant him any other remedy that it deemed fit. Under section 12(3)(v iii) of the Employment and Labour Relations Court Act, the court had power to grant a litigant that was before it any other remedy that it considered appropriate having regard to the facts of the case.

Claim partially allowed.
Orders

1. The respondent’s termination of the claimant’s contract of service was declared procedurally irregular and therefore unlawful.
2. The claimant was awarded compensation that was equivalent to his gross salary for four (4) months, that was to say Ksh. 1,200,000.00.
3. The award was subject to the applicable statutory deductions.
4. The respondent was ordered to refund the claimant the sum of Ksh.24,000.00 that was irregularly deducted from the claimant’s salary.
5. The above awards attracted interest at court rates from the date of the judgment.
6. The claimant was granted costs of the case.
7. Any other relief that had not been expressly granted was deemed as having been declined.