Moses Kiplagat Changwony v Tana & Athi River Development Authority
The bottom line
#Kenya's Court of Appeal ruled that suspending an employee without pay pending investigations is not dismissal, and resigning during such suspension forfeits salary claims.
What this practically means
#Executive summary
#Key legal issues
#Whether the suspension of the appellant by the Board was lawful and procedural
The suspension was lawful, issued under Regulation 7.15.4 of the TARDACODE by the Chairman with requisite authority, and prompted by necessity, not malice.
The suspension followed findings of mismanagement by the Inspectorate of State Corporations and was intended to allow uninhibited investigations. Subsequent criminal charges for abuse of office and conspiracy to defraud reinforced that the decision was not actuated by malice or bad faith. The Board, through the Chairman, had authority under the TARDACODE.
Whether the prolonged suspension without pay amounted to constructive dismissal
No constructive dismissal; the resignation was unilateral and unsolicited and cannot be attributed to the respondent.
Applying the test in Western Excavating v Sharp via Coca Cola v Ligaga, the court found no conduct demonstrating an intention to terminate the contract. The delay in investigations was attributable to multiple Government agencies, and the suspension without pay was a laid-down regulatory requirement.
Entitlement to salary, allowances and gratuity for the second contractual period
Neither salary/allowances nor gratuity for the unexpired second term was payable.
The appellant resigned while on suspension without pay, so nothing had accrued; having resigned before expiry of the second contract, he was not entitled to salary for the unexpired term. No computation or authorization for gratuity for the second period appeared on the record.
Whether the trial court failed to consider the documentary evidence
The trial judge considered the pleadings, documentary evidence and submissions; the impugned passage concerned only the gratuity claim.
The reference to absence of viva voce evidence merely restated Chemmuttut J's order dispensing with oral evidence. The court was satisfied the learned judge evaluated and analysed the evidence and rightly dismissed the claim.
Legal principles established
#- A first appellate court must subject the evidence and material before the superior court to fresh and exhaustive scrutiny and draw its own conclusions, while allowing for the fact it neither saw nor heard the witnesses.
- Suspension of an employee without pay in accordance with the employer's disciplinary regulations, to pave way for investigations, does not amount to termination of employment and does not require an opportunity to be heard at that stage.
- An employer bound by regulations prohibiting payment of salary during suspension is not authorized to pay salary or allowances during that period.
- Where prolonged investigations into a State Corporation employee involve external Government agencies beyond the employer's control, the employer cannot be faulted for the delay, and the employee's resignation in such circumstances is unilateral, not constructive dismissal.
Court orders
#- 1.Appeal dismissed with costs
- 2.It is so ordered
- On appeal from
- Industrial Court
- Industrial Court Case No. 785 of 2010
- Jurisdiction invoked
- First appeal to the Court of Appeal under the applicable appellate statute (not expressly stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Minnie Mbue v Jamii Bora Bank Limited [2019] KECA 61 (KLR)[2019] KECA 61 (KLR)20 Dec 2019
- Emmanuel Kayala Mate v Wevarsity Sacco Society Limited [2018] KEELRC 997 (KLR)[2018] KEELRC 997 (KLR)4 Oct 2018
- Emmanuel Kayala Mate v Wevarsity Sacco Society Limited [2018] KEELRC 997 (KLR)[2018] KEELRC 997 (KLR)4 Oct 2018followed
Cite this brief
#Cite this brief
Caselaw, "Moses Kiplagat Changwony v Tana & Athi River Development Authority", Case Analysis (2017). Civil Appeal No. 167 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/768/eng@2017-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.