Abdi Dubow Koriow v Hassan Nassip Jelle & 3 others [2020] eKLR Case Summary

Court
Employment and Labour Relations Court at Nairobi
Category
Civil
Judge(s)
Judge Radido Stephen
Judgment Date
October 29, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief: Abdi Dubow Koriow v Hassan Nassip Jelle & 3 others [2020] eKLR


1. Case Information:
- Name of the Case: Abdi Dubow Koriow v. Hassan Nassip Jelle & Others
- Case Number: Petition No. E011 of 2020
- Court: Employment and Labour Relations Court of Kenya
- Date Delivered: 29 October 2020
- Category of Law: Civil
- Judge(s): Judge Radido Stephen
- Country: Kenya

2. Questions Presented:
The court was tasked with resolving several central legal issues:
- Whether the Petitioner’s right to legitimate expectation was infringed.
- Whether the appointment of the 1st Respondent violated constitutional and statutory principles regarding public office appointments.
- Whether the appointment of the 1st Respondent was justified.
- Whether the Petitioner was entitled to unpaid salary for the period from December 2017 to November 2019.
- The issue of costs associated with the Petition.

3. Facts of the Case:
The Petitioner, Abdi Dubow Koriow, was appointed as Assistant Chief of Sangole sub-location in 1993. He resigned in January 2017 to contest in the County Assembly elections but later attempted to revoke his resignation in March 2017. Despite his efforts to return to his position, including appeals to the Public Service Commission, his requests were declined. The position was subsequently advertised, and the 1st Respondent, Hassan Nassip Jelle, was appointed as Chief of Sangole Location. The Petitioner alleged that this appointment was unfair, discriminatory, and constituted a breach of contract.

4. Procedural History:
The Petitioner filed a Petition on 22 July 2020, along with a Motion for interim conservatory orders. The court directed that both the Motion and the Petition be heard simultaneously. Various affidavits and submissions were exchanged, with the Respondents filing their responses by the end of September 2020. The 1st Respondent did not participate in the proceedings.

5. Analysis:
- Rules: The court examined Articles 2, 3, 10, 19, 20, 22, 23, 25, 27, 28, 35, 41, 47, 50, 165, 258, 259, and 260 of the Constitution of Kenya, Section 4 of the Fair Administrative Actions Act of 2015, and Sections 5 and 45 of the Employment Act, 2007.
- Case Law: The court referenced *Communications Commission of Kenya & 5 Others v Royal Media Services & 5 Ors (2014)* regarding legitimate expectation, emphasizing that such expectations must arise from a promise or practice by a public authority. The Petitioner also cited *Jane Kiongo & 15 Ors v Laikipia University & 6 Ors (2019)* to support his claim of legitimate expectation.
- Application: The court found that the Petitioner’s resignation was voluntary and could not be unilaterally revoked. The court noted that the Petitioner’s continued remuneration was erroneous and did not establish a legitimate expectation. The court further determined that the appointment of the 1st Respondent met the constitutional principles of public service, as the Petitioner failed to provide evidence of discrimination or lack of merit in the appointment process. Regarding breach of contract, the court concluded that the Petitioner had not been unfairly dismissed, as he had resigned and was not entitled to the claimed remuneration.

6. Conclusion:
The court dismissed the Petition, ruling that there was no merit in the claims related to legitimate expectation, the validity of the 1st Respondent's appointment, or breach of contract. The decision reinforced the principle that a resignation is final unless formally accepted by the employer.

7. Dissent:
There were no dissenting opinions noted in the case brief.

8. Summary:
The Employment and Labour Relations Court of Kenya dismissed Abdi Dubow Koriow's Petition against the appointment of Hassan Nassip Jelle as Chief of Sangole Location, finding no infringement of his rights or breach of contract. This case underscores the importance of formal resignation processes and the standards for public service appointments, emphasizing the need for evidence in claims of discrimination and legitimate expectation.

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