Sunday, September 28, 2008

EMPLOYMENT LAW: KRA LOSES UNFAIR DISMISSAL LAWSUIT

(Also reported in the Daily Nation issue of Sept. 29 2008 page 14 column 1 as "KRA shelled out Sh 12 Million for unfair dismissal of worker")

Murgani v Kenya Revenue Authority [2008] eKLR (www.kenyalaw.org)

High Court at Nairobi

J.B. Ojwang, J

September 22, 2008

 

By Michael M. Murungi

 

Managers of public institutions who exercise high handedness in the dismissal of employees run the risk of violating constitutional and legal provisions and committing the civil wrong of misfeasance of public office. Last week, the High Court reprimanded the Kenya Revenue Authority (KRA) and issued judgment against it for over Kshs. 12 Million for failing to observe fairness and natural justice in dismissing its employee.

 Menginya Salim Murgan had been employed in 1996 as a Senior Research Officer and by the time of his dismissal in 2001, he had risen to the rank of Senior Assistant Commissioner. His dismissal had been the culmination of what the KRA termed as a disciplinary procedure instituted against him for breaching KRA’s Code of Conduct by “failing to prevent a conspiracy to defraud the Government of revenue through evasion of duty on goods”. But Murgani felt that his dismissal had been unwarranted and actuated by malice. As far as he was concerned, he had dutifully investigated the tax evasion incident which was the subject of the disciplinary proceedings and helped in the recovery of duty owing to the KRA but because of his disagreement with a senior officer, he was suspended from duty and subjected to a travesty of disciplinary proceedings.

 In 2002, Murgani had filed a suit against the KRA for wrongful termination of employment occasioning a destruction of his working career and for the wrong of misfeasance in public office occasioning him harm. His case was that the KRA had breached his contract of employment when it had wrongfully dismissed him without due cause and without giving him six months’ notice or salary in lieu of such notice. He stated that he had been a permanent and pensionable employee and that he had contributed to a pension scheme operated by the KRA through monthly deductions from his salary. He characterized KRA’s deliberate disregard of rules of natural justice as an abuse of public office amounting to the civil wrong (tort) of misfeasance in public office for which he was entitled to exemplary or punitive damages.  

 Murgani was represented by Dr. Gibson Kamau Kuria while the suit was defended by Mr. Ontweka on behalf of the KRA.

 The KRA had denied the claim and asserted that Murgani’s dismissal was warranted, procedural and that it did not amount to a breach of any contract of employment. However, as Justice J.B. Ojwang found after hearing and analyzing the evidence for either side, no specific evidence was given to show how and to what extent Murgani had violated the ethics governing his work.  It was apparent that somebody within the KRA had suspicions regarding his performance and this led to repeated suspensions, and, eventually, to the termination of his employment.  His disciplinary case was heard repeatedly by the same officers at the Staff Committee level and the Board of Directors level, a collective mode of hearing that blurred the line of appeal.  The officers who heard the disciplinary matter, were also, at least partially, the same officers who had taken the decision to suspend him and the suspicions which led to the suspensions and to the termination of employment were not set out in a document availed to him to enable him to respond.  For the most part, he did not share a forum with his accusers, so that the differing views could be resolved through an informed process.

 

Justice Ojwang deprecated KRA’s conduct, observing that the status quo of the employment relationship inherently vests in the employee both normal rights, and legitimate expectations.  In a public institution, he further observed, there will invariably be codes of management which lay down the rights and expectations of the employees, as well as procedures of discipline and termination of employment.  Such disciplinary procedures in public bodies are tribunal matters requiring fair procedures of resolution, these being expressed in particular in the rules of natural justice.

 The Judge found that Murgani’s dismissal from employment was required to be in line with the Code of Conduct, a document which would serve as the basis of fairness and natural justice. It was not open to the KRA to terminate his employment at will even by the mere payment of several months’ salary in lieu of notice. He was entitled to a fair hearing and both the Staff Committee and the Board of Directors had not complied with the rules of natural justice which apply to tribunals exercising powers of discipline. The wrongful dismissal had caused Murgani to suffer damage and loss for which he was entitled to an award of damages. Further, because the action taken by the KRA violated basic constitutional and legal principles and amounted to the tort of misfeasance of public office, Murgani was entitled to claim a further award of exemplary or punitive damages. The Court nevertheless recalled the principle of law that where a party sustains a loss by reason of a breach of contract, the purpose of compensation should be, so far as money can do so, to place him in no more than the situation he would have been if the contract had been performed.

 Dismissing a procedural point raised by the KRA, Justice Ojwang ruled that the suit was not of a  nature requiring the service of a prior notice of intention to sue on the Attorney General under the Government Proceedings Act. In any case, based on the correspondence exchanged by the parties in the time leading to the litigation, the judge was satisfied that the requirements any law contemplating such notices had been satisfied.

 Ultimately, judgment was entered against the KRA for over Kshs. 12 million representing Kshs. 1 Million for exemplary damages and special damages composed of Murgani’s pension, his leave allowance, his gross salary with interest from the date of termination of employment to the date of judgment and the costs incurred by him in the litigation.

 

4 comments:

Unknown said...

R

Unknown said...

Something has happened to judges and law nowadays, and too many thing are being treated wrong. Why so many judges nowadays are corrupted, anyway they have pretty good salary. It is even hard to describe what greedy they are: https://tuko.co.ke/181931-holy-spirit-sends-webuye-family-resurrect-dead-morgue.html .

Anonymous said...

Sadly

JoelsBlog

Jones Morris said...

Interesting and amazing how your post is! It Is Useful and helpful for me That I like it very much, and I am looking forward to Hearing from your next.. Unfair Dismissal