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Court of AppealDismissedEmployment and Labour Relations Appeal (appellant's appeal from the Industrial Court)· [2017] KECA 221 (KLR)

Gichohi v Kenya Agricultural Research Inst (Civil Appeal 41 of 2014) [2017] KECA 221 (KLR)

Court of Appeal of Kenya
6 October 2017
1,720 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that a storekeeper's dismissal for unaccounted goods was lawful, and that it can review both facts and law in employment appeals.

What this practically means

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Executive summary

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The appellant, employed by the Kenya Trypanosomiasis Research Institute (KETRI), had his services transferred to the respondent (KARI) pursuant to a Presidential circular dissolving KETRI. He was interdicted in March 2006 over failure to account for toner cartridges valued at Kshs.503,382/= and summarily dismissed on 6th July 2007. The Industrial Court dismissed his claim but allowed KARI's counter-claim for the value of the cartridges, while directing that a further claim of Kshs.31,225/= (costs from a withdrawn suit) be pursued in execution of the withdrawn suit. On appeal, the respondent raised a preliminary objection that section 17 of the Industrial Court Act permitted appeals on matters of law only. The Court of Appeal held that section 17 had been deleted in its entirety by Statute Law (Miscellaneous Amendments) Act No. 18 of 2014, giving it jurisdiction over both fact and law in employment disputes. On the merits, the Court found the summary dismissal substantively and procedurally lawful: the appellant admitted receiving and signing for the goods, which he never recorded or accounted for; he was notified in writing of the reasons for dismissal, given a hearing, and his representations were considered but found unsatisfactory, satisfying sections 41(1) and 44(4)(c) and (g) of the Employment Act, 2007. The award on the counter-claim was upheld as supported by the evidence. The Court also held that KARI, having lawfully taken over KETRI's functions and the appellant's services without objection, had legal capacity to dismiss him. The appeal was dismissed in its entirety with costs to the respondent.

Key legal issues

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01

Whether the appeal was competent in light of section 17 of the Industrial Court Act limiting appeals to matters of law

Holding

The appeal was competent because section 17 was deleted in its entirety by Statute Law (Miscellaneous Amendments) Act No. 18 of 2014; the Court has jurisdiction over both fact and law in employment disputes.

Reasoning

The respondent's counsel argued that appeals from the Industrial Court lay on matters of law only. The Court held the law had since been amended by Statute Law (Miscellaneous Amendments) Act No. 18 of 2014, which deleted section 17 of the Industrial Court Act entirely, relying on the Court's earlier decision in Lamathe Hygiene Food v Wesley Patrick Simasi Wafula & 8 Others.

p. 2
02

Whether the appellant's summary dismissal was lawful

Holding

The summary dismissal was substantively and procedurally lawful; the provisions of section 41(1) of the Employment Act regarding notification and hearing were substantially complied with, and sections 44(4)(c) and (g) justified summary dismissal.

Reasoning

The appellant, a store keeper, received goods worth Kshs.503,382/=, signed the delivery note, failed to record them in store records and failed to account for them. He was notified in writing of the reasons for dismissal, responded, and his representations were considered by the Staff Advisory Committee but found unsatisfactory. The Court found substantial compliance with section 41(1) and sufficient grounds under section 44(4)(c) and (g).

p. 3
03

Whether the trial court erred in awarding the respondent Kshs.503,382/= on the counter-claim

Holding

The ground failed; the appellant admitted receiving and signing for the goods, which were not recorded in store records and could not be accounted for, and DW1 confirmed the cartridges had been paid for.

Reasoning

The appellant admitted receipt of the goods by signing the delivery note. The goods were unaccounted for and unrecorded in store records. DW1's re-examination established that the cartridges had been paid for by the employer, entitling the respondent to recover their value from the appellant on the counter-claim.

p. 3
04

Whether KARI had legal capacity to dismiss the appellant for offences allegedly committed against KETRI

Holding

KARI had legal capacity to dismiss the appellant; Presidential circular No. 3 of 2003 dissolved KETRI and its functions were taken over by KARI, and the appellant's services were transferred with effect from 1st July 2004 without objection.

Reasoning

There was unchallenged evidence that Presidential circular No. 3 of 2003 amended the constitutions of KETRI and KARI and dissolved KETRI, whose functions were taken over by KARI. By a letter dated 6th January 2005, the appellant was informed of the transfer of his services to KARI; he raised no objection and continued to discharge his duties until interdiction and dismissal.

p. 4

Legal principles established

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  • Following the deletion of section 17 of the Industrial Court Act by Statute Law (Miscellaneous Amendments) Act No. 18 of 2014, the Court of Appeal has jurisdiction to hear appeals from the Employment and Labour Relations Court on both issues of fact and law.
  • As a first appellate court, the Court of Appeal has an obligation to re-evaluate the evidence tendered before the trial court and determine whether the conclusions reached by the trial judge were correct.
  • Where an employer's functions and responsibilities are lawfully transferred to another entity upon reorganization and the employee's services are transferred with his consent and without objection, the successor entity has legal capacity to discipline and dismiss the employee for misconduct occurring in the predecessor entity.

Court orders

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  1. 1.Dismissal of the appeal in its entirety
  2. 2.Appellant to bear the costs of the appeal

Authorities

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Legislation

  • Industrial Court Actsection 17
  • Statute Law (Miscellaneous Amendments) Act No. 18 of 2014
  • Civil Procedure RulesOrder 21 rule 4
  • Employment Act, 2007section 44(4)(c)
  • Employment Act, 2007section 44(4)(g)
  • Employment Act, 2007section 41(1)

Cases cited (2)

  • Lamathe Hygiene Food v Wesley Patrick Simasi Wafula & 8 Others
    [2016] eKLR
  • Kenya Port Authority v Kuston (Kenya) Limited
    [2009] 2 E.A. 212
On appeal from
Industrial Court (now Employment and Labour Relations Court)
Jurisdiction invoked
Statute Law (Miscellaneous Amendments) Act No. 18 of 2014, which deleted section 17 of the Industrial Court Act, conferring on the Court of Appeal jurisdiction to hear appeals on both fact and law in employment and labour relations disputes

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gichohi v Kenya Agricultural Research Inst (Civil Appeal 41 of 2014) [2017] KECA 221 (KLR)", Case Analysis (2017). Employment and Labour Relations Appeal (appellant's appeal from the Industrial Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/221/eng@2017-10-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.