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Court of AppealPartially AllowedCourt of Appeal Appeal — from E&LR Cause No. 793 of 2015

Kenya Ports Authority v Kisuwa [2017] KECA 652 (KLR)

Court of Appeal of Kenya
10 March 2017
3,790 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed employers can dismiss staff for forged certificates without an oral hearing, and dishonest employees get no compensation.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Asike-Makhandia, Ouko and M'inoti, JJA) allowed in part an appeal by the Kenya Ports Authority against a decision of Makau, J. in the Employment and Labour Relations Court, which had declared the summary dismissal of its employee, Hussein Ahmed Hassan, unfair and wrongful and awarded him one month's salary in lieu of notice and a refund of pension contributions. The employee had been dismissed for presenting forged KCSE and degree certificates to obtain promotion to a management grade, and for failing to respond to a show-cause letter within 72 hours. On first appeal, the Court re-evaluated the evidence and confirmed that the respondent had forged the documents, constituting gross misconduct justifying summary dismissal. The Court rejected the trial judge's view that the absence of an oral disciplinary hearing breached section 41 of the Employment Act, holding, consistently with its decision in Kenya Revenue Authority v Menginya Salim Murgani, that the hearing contemplated by section 41 is not necessarily oral and that exchanged correspondence may suffice, depending on the circumstances of each case. The Court invoked the ex turpi causa doctrine to hold that no compensation, reinstatement or future earnings could flow from the employee's own forgery. The pension refund order was set aside for want of evidence of the respondent's membership of the scheme, and the award of half the costs to the respondent was also set aside. The appeal succeeded only to that extent, with no orders as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned Judge erred in his construction of section 41 of the Employment Act by holding that the appellant, through an unfair procedure, failed to invite and hear the respondent through an oral presentation before dismissing him
  2. 2.Whether it was in error for the learned Judge to order the refund to the respondent of pension contributions

Key legal issues

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01

Whether section 41 of the Employment Act mandates an oral hearing before termination for misconduct

Holding

No; the section requires the employer to explain the reasons and to hear and consider the employee's representations, but an oral hearing is not mandatory in every case. Sufficiency of the hearing is determined case by case; exchange of correspondence may suffice.

Reasoning

The Court adopted its earlier decision in Kenya Revenue Authority v Menginya Salim Murgani, guided by R v Immigration Appeal Tribunal ex parte Jones, holding that the fairness of a hearing is not determined solely by its oral nature. Section 41 accords with natural justice, requiring notice of charges and an opportunity to be heard. The respondent was given a show-cause letter and his representations were considered; he squandered the opportunity by not addressing the forgery allegations. The necessity of an oral hearing depends on the subject and nature of the dispute and the circumstances of the case.

p. 6
02

Whether the dismissal was substantively justified

Holding

Yes; the respondent presented forged academic certificates to qualify for promotion, constituting gross misconduct justifying summary dismissal under section 44(4).

Reasoning

The Court re-evaluated the evidence on first appeal. Investigations confirmed from Lenana School and Kenyatta University that the certificates were not genuine; the respondent's D+ at KCSE meant he could not qualify for admission to a degree or the HM4 management grade. His belated reply was backdated with the help of a staff member and did not address the forgery allegations. The burden of proving gross misconduct was discharged.

p. 4
03

Whether the court could order refund of pension contributions

Holding

No; the trial court erred in granting pension benefits without evidence that the respondent was a member of the scheme or of the scheme's terms of payment.

Reasoning

The appellant, relying on Kenya Ports Authority v Industrial Court of Kenya, argued that a refund could only be directed against the trustees of the scheme as an independent entity and in accordance with the Retirement Benefits Act. The Court found there was no evidence of the respondent's membership of the scheme and no evidence of the scheme's terms, which were not before the learned Judge; the award was therefore set aside.

p. 7
04

Whether an employee dismissed for forgery can claim compensation or future earnings

Holding

No; the ex turpi causa doctrine bars remedies founded on the employee's own illegal act of forgery.

Reasoning

Relying on Lord Mansfield CJ in Holman v Johnson, the Court held that no court will lend its aid to a person who founds a claim on an immoral or illegal act. Since the respondent secured the post through forged papers, compensation for unfair termination and loss of future earnings were unavailable, and reinstatement was properly rejected.

p. 7

Legal principles established

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  • The hearing contemplated under section 41 of the Employment Act is not necessarily oral; whether an oral hearing is required depends on the subject matter, nature of the dispute and the circumstances of the particular case
  • An employer complies with section 41 where it explains the reasons for termination and hears and considers the employee's representations, including through exchange of correspondence
  • No legal remedy or benefit can flow from an illegal act (ex turpi causa non oritur actio); an employee who obtains a position through forged qualifications cannot claim compensation or benefits arising from that employment

Court orders

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  1. 1.Appeal allowed only to the extent explained in the judgment; findings that the dismissal was procedurally unfair set aside
  2. 2.Order for refund of pension contributions set aside for lack of evidence of membership of the pension scheme
  3. 3.Award of half of the costs to the respondent set aside
  4. 4.No orders as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
William Ouko
W. OukoJA
Currently serving
majority
majority
On appeal from
Employment and Labour Relations Court
E & L R Cause No. 793 of 2015
Jurisdiction invoked
First appeal under section 17 of the Employment Act, 2007 (reconsideration of facts and law)

Relief refused

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Reinstatement

Respondent obtained the position through forged academic papers

p. 6

Compensation for unfair termination and loss of future earnings

Respondent lacked the requisite qualification for the post, having obtained it by forgery

p. 6

Pension entitlements

No evidence before the trial court that the respondent was a member of the pension scheme or of the scheme's terms

p. 7

Costs

No orders as to costs; the award of half of the costs to the respondent was set aside

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

the fairness of a hearing is not determined solely by its oral nature. It may be conducted through an exchange of letters as happened in the matter before us and we are satisfied that it was a fair hearing.
p. 6Section 41 hearing need not be oral
It must however be stressed that the necessity of oral hearing will depend on the subject and nature of the dispute, the whole circumstances of the particular case.
p. 6Case-by-case test for oral hearing under section 41
We therefore entertain no doubt that the respondent presented forged documents in order to qualify for a higher position which he did not deserve.
p. 4Substantive justification for summary dismissal
No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.
p. 7Ex turpi causa doctrine
Finally the learned Judge erred in granting pension benefits without evidence that the respondent was a member of the pension's scheme.
p. 7Pension award set aside
Therefore only to the extent explained above, the appeal succeeds and we make no orders as to costs.
p. 7Final orders and disposition

Issues in the judgment

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minor

Judgment states the learned Judge found a breach of 'section 41(2) (erroneously recorded as section 44(3) and (4) of the Employment Act' — an internal inconsistency in the judgment below noted by this Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Ports Authority v Kisuwa [2017] KECA 652 (KLR)", Case Analysis (2017). Court of Appeal Appeal — from E&LR Cause No. 793 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/652/eng@2017-03-10

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