Kenya Ports Authority v Kisuwa [2017] KECA 652 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether it was in error for the learned Judge to order the refund to the respondent of pension contributions
Key legal issues
#Whether section 41 of the Employment Act mandates an oral hearing before termination for misconduct
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.
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.
Whether the dismissal was substantively justified
Yes; the respondent presented forged academic certificates to qualify for promotion, constituting gross misconduct justifying summary dismissal under section 44(4).
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.
Whether the court could order refund of pension contributions
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.
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.
Whether an employee dismissed for forgery can claim compensation or future earnings
No; the ex turpi causa doctrine bars remedies founded on the employee's own illegal act of forgery.
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.
Legal principles established
#- 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
#- 1.Appeal allowed only to the extent explained in the judgment; findings that the dismissal was procedurally unfair set aside
- 2.Order for refund of pension contributions set aside for lack of evidence of membership of the pension scheme
- 3.Award of half of the costs to the respondent set aside
- 4.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#Reinstatement
Respondent obtained the position through forged academic papers
Compensation for unfair termination and loss of future earnings
Respondent lacked the requisite qualification for the post, having obtained it by forgery
Pension entitlements
No evidence before the trial court that the respondent was a member of the pension scheme or of the scheme's terms
Costs
No orders as to costs; the award of half of the costs to the respondent was set aside
Quotable passages
#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.
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.
We therefore entertain no doubt that the respondent presented forged documents in order to qualify for a higher position which he did not deserve.
No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.
Finally the learned Judge erred in granting pension benefits without evidence that the respondent was a member of the pension's scheme.
Therefore only to the extent explained above, the appeal succeeds and we make no orders as to costs.
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mbotha v Usiku Entertainment Limited (Employment and Labour Relations Cause E651 of 2020) [2025] KEELRC 1993 (KLR)[2025] KEELRC 1993 (KLR)8 Jul 2025
- Kabura (As the Administrator of the Estate of Ishak AF) v Board of Trustees National Social Security Fund (Civil Appeal 451 of 2019) [2025] KECA 733 (KLR)[2025] KECA 733 (KLR)2 May 2025
Cite this brief
#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.