The Board of Trustees National Social Security Fund v Jorim Wahore Marenya [2017] KECA 409 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that reinstatement must be ordered within three years of dismissal and that a criminal acquittal does not guarantee an employee their job back.
What this practically means
#Executive summary
#Key legal issues
#Legality of reinstatement order made outside the statutory three-year window
The reinstatement order was unlawful as it contravened the three-year limitation in section 12(3)(vii) of the Industrial Court Act, 2011, and the repealed Employment Act (Cap 226) did not provide for reinstatement at all
The operative law when the cause of action arose was the repealed Employment Act (Cap 226), which made no provision for reinstatement. The learned Judge invoked the later Industrial Court Act, 2011, but overlooked its caveat that reinstatement is only available within three years of dismissal. Having been dismissed in 2005 and reinstated by the award of 2012, the respondent fell outside the statutory window and the order could not stand.
Whether summary dismissal without oral hearing breached natural justice
The respondent was not condemned unheard; written admission of receiving the money, service of a notice to show cause, and an opportunity to respond satisfied natural justice under the then-operative law
The court held that the rule of natural justice is not restricted to or synonymous with an oral hearing. The respondent was arrested by independent agents, admitted in written statements to receiving the money, was served with a show-cause notice with seven days to respond, and responded. The statute then in force did not mandate the elaborate oral-hearing procedures found in the current law, so the dismissal was not unlawful, though notice or payment in lieu should have been given.
Effect of criminal acquittal on disciplinary dismissal
The acquittal did not entitle the respondent to reinstatement; the employer was entitled to discipline him for breach of the Code of Regulations independently of the criminal charges
The interdiction predated the conclusion of the criminal proceedings and was not engineered by the employer. Clause 3:7(g) permits discipline for matters other than those in criminal charges, and the respondent had prior disciplinary history including a final warning. His dismissal was therefore grounded in admitted breach of Clause 1:16 of the Code of Regulations prohibiting acceptance of gifts, not merely on his arrest and prosecution.
Legal principles established
#- An order for reinstatement can only be made within three years of dismissal; a reinstatement order made after that period is not legally sustainable
- The rule of natural justice is not synonymous with an oral hearing; where an employee admits the misconduct in writing and is given an opportunity to show cause, he is not condemned unheard
- An employer may discipline an employee for matters other than those included in pending criminal charges, and an acquittal does not automatically entitle the employee to reinstatement
Court orders
#- 1.Appeal allowed
- 2.Award of Madzayo, J. dated 13th July 2012, delivered by Justice Onesmus Ndumbuthi on 19th September 2012, set aside
- 3.Each party to bear its own costs
- On appeal from
- Industrial Court of Kenya at Nairobi (now Employment and Labour Relations Court)
- Industrial Cause No. 408 of 2010
- Jurisdiction invoked
- First appellate jurisdiction over the Industrial Court under the applicable employment legislation
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "The Board of Trustees National Social Security Fund v Jorim Wahore Marenya [2017] KECA 409 (KLR)", Case Analysis (2017). Civil Appeal No. 110 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/409/eng@2017-07-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.