Procedure to be followed where an employee’s position had become redundant or was due for retrenchment

Headnote: The petitioner’s case was that his contract of employment was terminated unfairly and unlawfully. The court highlighted the proper procedure to be followed where an employee’s position had become redundant or was due for retrenchment. The court held that the petitioner ought to have been consulted before the termination. The court further found that the law did not allow the respondent to terminate the petitioner’s contract at will.  

 

Wekesa v Mount Kenya University (Petition 138 of 2016) [2024] KEELRC 538 (KLR) (8 March 2024) (Judgment)

Neutral citation: [2024] KEELRC 538 (KLR)

Employment and Labour Relations Court at Nairobi

J Rika, J

March 8, 2024

Reported by Kakai Toili

https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/538/eng@2024-03-08

 

Labour Law – employment – termination of contract of employment – redundancy – what was the proper procedure to be followed where an employee’s position had become redundant or was due for retrenchment - Employment Act (cap 226), section 40.

Labour Law – employment – termination of contract of employment - termination of contract of employment by an employer at will - whether it was mandatory for an employer to consult an employee where the employer sought to terminate the employee’s contract prematurely - Employment Act (cap 226), sections 40, 43 and 45.

Statutes – retrospective application of statutes - retrospective application of the guidelines by the Council for University Education on promotions - whether the guidelines could be applied retrospectively to promotions pre-dating the guidelines.

Constitutional Law - constitutional reliefs – constitutional reliefs in employment disputes - whether an employee could claim constitutional violations and remedies, in addition to contractual and statutory violations in employment disputes.

Constitutional Law – fundamental rights and freedoms - concept of human dignity - what was the nature of the concept of human dignity - Universal Declaration of Human Rights, article 1.

 

Brief facts

The petitioner stated that he was employed by the respondent as a professor, and acting dean at the respondent’s school of law, on a 1-year contract dated June 10, 2010. The petitioner stated that he served diligently in his various roles, until January 25, 2016, when the respondent, abruptly terminated his contract unfairly and unlawfully. He was advised that he had been retrenched. The petitioner stated that the termination violated a raft of his constitutional rights, including; right to fair labour practices; right to dignity; and the right not to be discriminated against. 

The petitioner submitted that the Constitution guaranteed substantive and procedural fairness on termination of employment. He further submitted that the respondent was required to engage him in consultations, before retrenchment. He stated that he was not consulted; he was not paid severance, and other dues were underpaid. He further claimed that he was denied his right to dignity. He was exposed to pecuniary embarrassment.

The petitioner stated that it was difficult to explain to colleagues and students why he, a professor of international repute, was dropped by the respondent from teaching law, without valid reason. The petitioner thus prayed for among other orders; a declaration that the retrenchment was unfair and unlawful; reinstatement; and compensation equivalent of 12 months’ salary for unfair and unlawful termination.

 

Issues

  1. What was the proper procedure to be followed where an employee’s position had become redundant or was due for retrenchment.
  2. Whether it was mandatory for an employer to consult an employee where the employer sought to terminate the employee’s contract prematurely.
  3. Whether an employer could terminate an employee’s contract at will.
  4. Whether the guidelines by the Council for University Education on promotions could be applied retrospectively to promotions pre-dating the guidelines.
  5. Whether an employee could claim constitutional violations and remedies, in addition to contractual and statutory violations in employment disputes.
  6. What was the nature of the concept of human dignity?

 

Held

  1. From the petitioner’s biography and other evidence on record, the petitioner came out across as a complete, thoroughbred, intellectual and legal professional, with an added expertise in sports medicine, whose credentials could not be doubted. His biography provided an open book, for any enquirer, including the respondent to interrogate, before making any decision relating to the petitioner. The biography was available in 2016 when the respondent terminated his contract.
  2. The petitioner was on leave. He was not involved in any form of consultations or hearing, regarding any of the proffered reasons in justifying termination. He was not notified that termination was contemplated and given any opportunity to say anything regarding the reasons for the intended termination. He had left the workplace on annual and research leave, only to be slammed with a letter of termination, when he was ready to resume duty. 
  3. Whatever the reasons the respondent had, whether prompted by regulatory requirements, or any shortcomings on the part of the petitioner, did not obviate the need to avail procedural fairness to the petitioner. He needed be told in advance that the respondent intended to terminate his contract prematurely, for specific reasons. He ought to have been consulted.
  4. If the respondent considered that the petitioner’s position had become redundant, or that he was due for retrenchment for operational reasons, then proper procedure under section 40 of the Employment Act ought to have been followed. That procedure required that the affected employee, if not a member of a trade union, was notified directly of the employer’s intention to declare his position redundant. Where he was a member of a trade union, the employer must notify his trade union. The local labour office must in either case, be notified. Notice must disclose the reasons for, and the extent of, the intended redundancy, not less than a month, prior to the intended date of termination on account of redundancy.
  5. Section 40 of the Employment Act employed the term ‘intended redundancy’ and ‘intended date of termination on account of redundancy.’ The use of those terms was deliberate. Fair redundancy procedure must have notices of intended redundancy, and intended termination. Those notices issued, before there was a decision to terminate on account of redundancy. The notices paved way for consultations. There was no notice issued to the petitioner by the respondent, advising him that the respondent intended to declare any position redundant or that it intended to terminate his contract on account of redundancy. Such notices ought to have issued at least a month, before the intended date of termination.
  6. Consultations were integral to fulfilment of the procedural rights under section 40(1)(c) to (g) of the Employment Act. It was only through consultations that the selection criteria; the obligations under the CBA or individual contract; leave entitlement; notice; and severance pay could be agreed upon. Consultations were important because fairness of procedure and substance, was premised on the employer complying with all the conditions prescribed by the law, under section 40(1) of the Employment Act.
  7. The respondent did not appear to have been sure footed in explaining procedure. It alternatively held that it followed redundancy procedure and submitted that it followed the termination clause in the contract executed between the parties. Either way, the law did not allow the respondent to terminate the petitioner’s contract at will, as the respondent did on January 25, 2016.
  8. The termination was not procedurally fair under the Employment Act, the Fair Administrative Action Act and the Constitution of Kenya. The grounds stated by the respondent in justifying termination, swayed like a column in an earthquake. Section 43 of the Employment Act required an employer to give clear valid reason or reasons justifying termination. Vacillation could only lead to a conclusion that an employer did not have valid reason or reasons to justify termination.
  9. Redundancy was mainly on the ground that the regulators, Council for Legal Education (CLE) and Council for University Education (CUE), had in place regulatory standards which the petitioner did not meet.
  10. Abrupt termination of the petitioner’s contract was a strange decision, more so, because the allegation that the petitioner was a professor of sports medicine, and not law, had been discounted.
  11. The guidelines from the CUE, which came into operation in 2015, could not affect the petitioner’s promotions, which preceded the guidelines. The petitioner became an associate professor and a full professor, before the guidelines. The CLE, did not have guidelines of its own that were shown by the respondent to bar the petitioner’s law professorship and deanship.
  12. Termination could not be justified solely on the basis of the termination clause. Nearly every other contract had a clause on termination, whose fulfilment, by either party, did not satisfy the requirement of substantive justification of termination, imposed by section 43 and 45 of the Employment Act. Termination clauses could hold sway prior to enactment of the Employment Act 2007, when the concept of employment at will of the employer, was an accepted principle of Kenya’s employment law. Under the Employment Act, valid reason or reasons must be established by an employer in justifying termination, even where the contract, as most contracts did, had a clause on termination notice.
  13. The respondent told the court that it had a moratorium of six months from the CLE, to put its house in order at its faculty of law. The letter granting moratorium was dated January 20, 2016. Six months would lapse in June 2016. The respondent ought to have utilized the moratorium to constructively engage the petitioner, as well as both regulators, and taken proper remedial action. Declaring that the petitioner’s position had become redundant was a very unorthodox way, of dealing with any regulatory apprehensions.
  14. The respondent did not establish valid reason or reasons, to justify termination of the petitioner’s contract as required under sections 43, 45 and 47(5) of the Employment Act. The purported redundancy was a colourable exercise.
  15. The petitioner’s right to claim constitutional violations and remedies, in addition to contractual and statutory violations could not be doubted.  The petitioner’s right not to be discriminated against, under article 27 of the Constitution, as legislated in section 5 of the Employment Act was violated; his right of fair administrative action under article 47, as legislated in section 4 of the Fair Administrative Action Act, and sections 40, 41, 43, 45 and 47(5) of the Employment Act was violated; and his article 41 right, under the Constitution, read with the same provisions of the Employment Act above, was violated. 
  16. The Constitution was similar to a wireframe that needed to be fixed with other materials; or a skeleton, that needed organs and muscles, for it to function. For every statutory or contractual breach, there was always an implicated constitutional violation. The petitioner’s right to human dignity, under article 28 of the Constitution was infringed. The respondent acted in a manner that did not respect, and protect the petitioner’s human dignity.  The evidence strongly pointed to violation of the petitioner’s right to human dignity. 
  17. The concept of human dignity was a belief, that all people hold a special value that was tied solely to their humanity. It was not about high status, the petitioner’s towering frame in the academia, but something he was born with. It was rooted in article 1 of the Universal Declaration of Human Rights, which stated that all human beings were born free and equal in dignity and rights.  The right was restated in the International Covenant on Civil and Political Rights, 1966, whose preamble states that, those rights derived from the inherent dignity of the human person. Recognizing a right to dignity was an acknowledgement of the intrinsic worth of human beings; and autonomy and control over one’s personal circumstances, was a fundamental aspect of human dignity. The respondent violated the petitioner’s internationally and constitutionally recognized right to human dignity.
  18. Remedies in employment law were not designed to be disproportionate to the nature of the violations suffered by the employee. The remedies were not aimed at unjust enrichment. Constitutional remedies could only supplement statutory and contractual remedies, where the statute or the contract, did not offer adequate redress.
  19. The ceiling for compensation for unfair and unlawful termination of employment had been set through legislation at equivalent of 12 months’ gross salary.  Such compensation may not suffice, where violations went beyond the confines of the statute or contract, such as where different forms of discrimination, were shown to have informed termination decision. 12 months’ salary would not suffice, where violation against the right not to be discriminated against, and where the right to human dignity, were shown to have openly been violated.
  20. The court was mandated to grant fair, balanced, and effective remedies, guided by section 49 of the Employment Act, section 12(3) of the Employment and Labour Relations Court Act, and article 23 of the Constitution.

Petition partly allowed.

Orders

  1. It was declared that termination of the petitioner’s contract by the respondent was unfair and unlawful.
  2. It was declared that the respondent violated the petitioner’s constitutional right to fair labour practices, the right to fair administrative action, the right to human dignity and the right not to be discriminated against.
  3. The respondent shall pay to the petitioner: balance of severance at Kshs. 709,442; balance of notice at Kshs. 45,645; balance of January 2016 salary at Kshs. 40,083; equivalent of 9 months’ salary in compensation for unfair termination at Kshs. 3,060,000; and coalesced damages for constitutional violations, at Kshs. 3,000,000 – total Kshs. 6,855,170.
  4. Costs to the petitioner.
  5. Interest granted at court rate, from the date of judgment, till payment was made in full.

An application became moot when a supervening event renders the reliefs sought incapable of practical implementation or resolution.

Headnote:      The petitioner, challenged the decisions of the High Court and Court of Appeal, which nullified his election as the Speaker of the Migori County Assembly. He sought conservatory orders from the Supreme Court to stay the execution of the Court of Appeal judgment and to prevent a fresh election for the Speaker position. The 1st respondent sought to halt the election process and admit new evidence relating to the nomination process. The Supreme Court declined to grant the orders sought, noting that the impeachment of the petitioner had rendered the applications moot. The court ruled that it would not engage in an academic exercise and dismissed both motions. The matter was remitted to the Deputy Registrar for directions on whether the substantive appeal should proceed. Each party was ordered to bear their own costs.

 

Likowa v Aluochier & 2 others (Petition (Application) E008 of 2024 & Application E013 of 2024 (Consolidated)) [2024] KESC 41 (KLR) (26 July 2024) (Ruling)

Neutral Citation: [2024] KESC 41 (KLR)

Supreme Court of Kenya

MK Koome, CJ and P; MK Ibrahim, SC Wanjala, I Lenaola, and W Ouko, SCJJ

July 26, 2024

Reported by John Ribia

https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/41/eng@2024-07-26

Civil Practice and Procedure – mootness - locus standi – supervening events –where a matter had been overtaken by events - whether an application became moot when a supervening event renders the reliefs sought incapable of practical implementation or resolution - whether the Supreme Court could adjudicate an electoral dispute concerning the validity of a Speaker's election when the Speaker had subsequently been impeached.

 

Brief facts

The petitioner was elected as the Speaker of the Migori County Assembly. The High Court nullified his election, citing procedural irregularities. The Court of Appeal upheld the High Court's decision ordering a fresh election. The petitioner filed an appeal to the Supreme Court seeking to stay the execution of the Court of Appeal's judgment and conservatory orders to halt the fresh election process. Concurrently, the 1st respondent sought injunctive relief and admission of additional evidence regarding the nomination process. While the appeal and applications were pending, Likowa was impeached as Speaker on April 23, 2024.

The Supreme Court found the motions by both parties had been overtaken by events due to the impeachment.

Issues

  1. Whether an application became moot when a supervening event renders the reliefs sought incapable of practical implementation or resolution.
  2. Whether the Supreme Court could adjudicate an electoral dispute concerning the validity of a Speaker's election when the Speaker had subsequently been impeached.

Held

  1. Under the provisions of section 23A of the Supreme Court Act, the Supreme Court had jurisdiction to issue an order for stay of execution, an injunction, stay of further proceedings or any other conservatory or interim orders, on such terms as the court may deem fit. An applicant must satisfy the court that an appeal was arguable and was not frivolous; that unless the orders of stay were granted, the appeal will be rendered nugatory; and thirdly, it was in the public interest that the order of stay be granted.
  2. The petitioner was impeached by Members of the County Assembly of Migori on April 23, 2024 and was no longer the Speaker of the County Assembly. It would not be a useful venture or beneficial for either the court or the parties to sustain the applications. As regards the Petition of Appeal, in view of the changed circumstances, with the removal of the petitioner as Speaker, directions should be taken before the Deputy Registrar of the Supreme Court on what issues were left for our determination, if at all.

Application dismissed.

Orders: -

  1. Directions to be taken before the Deputy Registrar of this Court on whether the petition of appeal should proceed to hearing.
  2. Each Party bore the costs of the two applications.

Standing Order No. 66(6) of the Baringo County Assembly Standing Orders, 2014 is unconstitutional for conflicting with section 40(3)(a) of the County Governments Act (cap 265)

Headnote:      The petition challenged the procedure for the removal a County Executive Committee Member (CECM) in Baringo County. The petitioner argued that Standing Order No. 66(6) of the Baringo County Assembly, which provided for a select committee of one-third of Assembly members (15 members), conflicted with Section 40(3) of the County Governments Act, which mandated a select committee of 5 members. Although the motion for the petitioner’s removal was withdrawn, the court proceeded to determine the constitutionality of the Standing Order. The court held that Standing Order No. 66(6) was inconsistent with the County Governments Act and declared it unconstitutional, illegal, and void to the extent of the inconsistency. The court emphasized that County Assemblies must ensure their Standing Orders comply with statutory and constitutional provisions. Each party was ordered to bear their own costs.

Kibwalei v Speaker County Assembly of Baringo & 2 others; Governor County Government of Baringo (Interested Party) (Petition E002 of 2023) [2024] KEHC 4707 (KLR) (18 April 2024) (Judgment)

Neutral Citation:

High Court at Kabarnet

R Ngetich, J

April 18, 2024

Reported by John Ribia

https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/4707/eng@2024-04-18

Statutes – interpretation of statutes – conflicting provisions - Standing Order No. 66(6) of the Baringo County Assembly vis-à-vis section 40(3)(a) of the County Governments Act - whether Standing Order No. 66(6) of the Baringo County Assembly Standing Orders, 2014was unconstitutional for conflicting with section 40(3)(a) of the County Governments Act (cap 265) by prescribing a different composition for the select committee tasked with investigating the removal of a County Executive Committee Member.

Brief facts

The petitioner was appointed as the County Executive Committee Member (CECM) for Public Works, Transport, and Infrastructure in Baringo County. A motion for his removal was introduced on October 17, 2023, citing incompetence, abuse of office, and gross violation of the Constitution.

On October 25, 2023, the County Assembly approved the motion with the support of one-third of its members, triggering the requirement to form a select committee to investigate the allegations. The petitioner challenged the constitutionality of Standing Order No. 66(6) of the Baringo County Assembly, which required the select committee to consist of one-third of the Assembly members (15 members) instead of the statutory requirement of 5 members under Section 40(3) of the County Governments Act. Before the select committee was formed, the motion to establish it was withdrawn, effectively halting the removal process.

Issue

Whether Standing Order No. 66(6) of the Baringo County Assembly Standing Orders, 2014 was unconstitutional for conflicting with section 40(3)(a) of the County Governments Act (cap 265) by prescribing a different composition for the select committee tasked with investigating the removal of a County Executive Committee Member.

Relevant Provisions of the Law

County Governments Act (cap 265) Section 40(3) County Governments Act

40. Removal of member of executive committee

(3)        If a motion under subsection (2) is supported by at least one-third of the members of the county assembly

(a)        the county assembly shall appoint a select committee comprising five of its members to investigate the matter; and

(b)        the select committee shall report, within ten days, to the county assembly whether it finds the allegations against the county executive committee member to be substantiated.

County Assembly of Baringo Standing Orders, 2014; Standing Order No. 66(6)

66.       Procedure for removal of a member of the County Executive Committee

(6)        When the Motion has been passed by at least one third of all Members of the County Assembly, the Assembly shall, within seven (7) days, appoint a special Committee comprising a third of the Members to investigate the matter and shall, within ten days, report to the Assembly whether it finds the allegations against the member of County Executive Committee to be substantiated.

 

Held

  1. Article 200 (c) of the Constitution mandated Parliament to make a legislation to provide for processes of appointment or removal of Officers of the County to facilitate operationalization of the County Government. In compliance with the Constitution parliament enacted the County Governments Act.
  2. There was a presumption of constitutionality of statutes. Sovereign power belongs to the people and it is to be exercised in accordance with the Constitution. That sovereign power was delegated to Parliament and the legislative assemblies in the county governments; the National Executive and the executive structures in the county governments; and the Judiciary and independent tribunals. The said organs must perform their functions in accordance with the Constitution.
  3. Article 2 of the Constitution provided that any law, including customary law, that was inconsistent with the Constitution was void to the extent of the inconsistency, and any act or omission in contravention of the Constitution was invalid. Where court was convinced that legislation was inconsistent with the Constitution, there was no reason why it should shy away from declaration it invalid to the extent of its inconsistency. When any of the state organs stepped outside its mandate, this court would not hesitate to intervene.
  4. The High Court wasvested with the power to interpret the Constitution and to safeguard, protect and promote its provisions as provided for under article 165(3) of the Constitution, had the duty and obligation to intervene in actions of other State Organs where it was alleged or demonstrated that the Constitution had either been violated or threatened with violation. The Constitution being the Supreme Law of the land, all State Organs must function and operate within the limits prescribed by the Constitution.
  5. In cases where they stepped beyond what the law and the Constitution permited them to do, they could not seek refuge in independence and hide under that cloak or mask of inscrutability in order to escape judicial scrutiny.
  6. Standing orders No.66(6) contravened the provisions of section 40(3)(a) of the County Governments Act to the extent of the number of a member of a select committee that considered the removal from Office of Members of the County Executive Committee. The County Governments Act provided that the select committee was to be comprised of five members of the assembly whereas the impugned Standing Order No.66(6) provided that the Select Committee was to be comprised a third of the Members of the County Assembly making the 15 in respect to the Baringo County Assembly which was three times the number the Act provided.
  7. There was a discrepancy on the composition of select committee under section 40(3) of the County Governments Act. Parliament in its wisdom while exercising a constitutional mandate under article 200, stipulated the number of members to the committee as 5 members and county assemblies ought to comply on composition in the Standing Orders. Standing order 66(6) of the Baringo County Assembly was contrary to section 40(30)(a) of the County Governments Act and therefore inconsistent with the Act and the Constitution and was null and void.

Petition allowed.

Orders: -

  1. Declaration that standing order 66(6) of the County Assembly of Baringo Standing Orders adopted on March 18, 2014 and as amended on the June 13, 2017 was unconstitutional, illegal and void for being contrary to the provisions of sections 40(3)(a) of the County Governments Act and article 200(c) of the Constitution.
  2. Each party was to bear their own costs.