National Cereals and Produce Board v John Kirui Torongei [2017] KECA 16 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that firing an employee over allegations never communicated to them beforehand makes the dismissal unfair and costly.
What this practically means
#Executive summary
#Key legal issues
#Fairness of termination on allegations different from those in the suspension letter
Termination of the respondent's employment was unfair because the Staff Advisory Committee departed from the allegations in the suspension letter and considered fresh allegations never put to the respondent, denying him a fair hearing.
The suspension letter accused the respondent of authorising falsified Invoice Dispatch Advices to conceal shortages. Police investigations had cleared him of fraud, establishing that his signature had been forged by a Stores Clerk. At the hearing before the Staff Advisory Committee, however, he was asked to explain his role in stock losses generally - a new line of allegations of which he had no notice. Section 41 of the Employment Act requires an employer to explain the reason for termination and hear representations; the Committee's deviation denied the respondent the opportunity to prepare and present a defence. The trial Judge's finding of unfairness was therefore correct.
Effect of police findings on an employer's disciplinary process
While police findings in a criminal process, where the standard of proof is high, do not fetter an employer's administrative disciplinary functions, the employer's failure even to consider the police letter exculpating the employee before recommending termination was significant.
Counsel for the appellant argued that reliance on police findings was erroneous since an employer retains administrative functions over discipline. The Court accepted that proposition in principle but noted it was surprising that the Staff Advisory Committee made no reference to the police clearance of the respondent and the charging of his colleague for the forgery, and that the Committee proceeded as if no police report existed. The Court declined to decide more on this ground given its finding on procedural breach.
Introduction of evidence through written submissions
A circular sought to be relied on as proof that the respondent breached process by delegating duties was improperly introduced through counsel's written submissions and could not form part of the record; the Court disregarded it entirely.
The Court criticised the practice of introducing documents via submissions, whether by the appellant or adopted by the trial Judge. Submissions merely highlight salient facts as seen by parties or advocates; they are not pleadings under Section 2 of the Civil Procedure Act and cannot replace pleadings or evidence. Reliance on such a document in a judgment is wrong, and the appellate court will ignore it as not forming part of the record at all.
Duty of the first appellate court
As a first appeal from a court of the same status as the High Court, the Court of Appeal must reappraise the evidence and may retry the case, as required by Rule 29 of the Court of Appeal Rules.
Invoking Selle v Motor Boat Company Limited, the Court restated that it must give the appellant a retrial on the facts, revisit the whole record and make its own conclusions of fact. Having done so, it found no error in the trial Judge's treatment of the evidence and agreed with the finding of unfair termination.
Legal principles established
#- An employer may not, at the disciplinary hearing stage, deviate from the allegations contained in the notice delivered to the employee before the hearing, and must notify the employee in advance of any new allegations and give him opportunity to prepare a defence.
- Submissions of counsel are not pleadings and cannot take the place of pleadings or evidence; a document introduced for the first time through written submissions does not form part of the record on which a court may rely.
- On a first appeal from a court of concurrent status with the High Court, the Court of Appeal is duty-bound to reappraise the evidence and, if need be, retry the case, as mandated by Rule 29 of the Court of Appeal Rules.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondent
- On appeal from
- Industrial Court of Kenya at Nakuru (now Employment & Labour Relations Court)
- Industrial Cause No. 6 of 2013
- Jurisdiction invoked
- First appellate jurisdiction over the Industrial Court of Kenya, a court of the same status as the High Court, under the Court of Appeal Rules (Rule 29)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "National Cereals and Produce Board v John Kirui Torongei [2017] KECA 16 (KLR)", Case Analysis (2017). Civil Appeal No. 255 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/16/eng@2017-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.