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Court of AppealPartially AllowedCivil Appeal No. 358 of 2014

Bramuel Dibondo Musundi v Kenya Revenue Authority [2018] KECA 582 (KLR)

Court of Appeal of Kenya
25 May 2018
3,650 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 ruled KRA unfairly dismissed an employee by ignoring its own disciplinary rules, converting the dismissal to normal termination with pay and benefits.

What this practically means

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Executive summary

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The Court of Appeal (Waki, Nambuye and Kiage, JJA) allowed in part a first appeal against the Industrial Court's dismissal of a former Kenya Revenue Authority employee's claim. The appellant was arrested and charged with corruption offences in 2003, suspended in July 2003, and dismissed in July 2004 following internal disciplinary proceedings for gross misconduct; his internal appeal was never determined and he was acquitted of all criminal charges in 2009. The Court framed three issues: whether the respondent flouted its own Code of Conduct, whether the dismissal letter was validly authenticated, and whether there were valid reasons for suspension and dismissal. It held that the respondent breached sections 3.2.2, 3.3.1 to 3.3.4 and 3.4.1 to 3.4.6 of its Code by lifting the criminal charges wholesale rather than framing its own charges, by conducting the disciplinary proceedings before a committee without jurisdiction over the appellant's grade, and by failing to determine the appellant's appeal. It further held that the signature of the dismissal letter by Mrs. L.M. Malinda was not anchored in section 11(4) of the KRA Act, as no gazette-notice delegation was demonstrated, rendering the dismissal invalid, null and void. The Court set aside the judgment of Nzioki wa Makau, J. dated 1st July 2014, declared the dismissal unlawful and unfair, converted it to normal termination with full terminal benefits, remitted the assessment of the award to the ELRC with specific guidelines, disallowed the claims for special damages of Kshs. 7,129,728.00, salary incremental credits and general and exemplary damages, awarded interest at court rates from 1st July 2014, and gave the appellant costs of the appeal and the court below.

Questions the Court framed

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

  1. 1.Whether the respondent flouted its own Code in the conduct of its internal disciplinary proceedings against the appellant.
  2. 2.Whether the appellant's dismissal from his employment stood vitiated by reason of the authentication of his letter of dismissal by Mrs. L.N. Malinda.
  3. 3.Whether the respondent had valid reasons for suspending and then subsequently dismissing the appellant from his employment.

Key legal issues

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01

Whether the respondent flouted its own Code in the internal disciplinary proceedings

Holding

Yes. The respondent lifted the criminal charges in blanket form instead of framing its own charges as required by section 3.2.2; the appellant of grade KRA 12 fell outside the internal disciplinary committee's jurisdiction under sections 3.3.1 and 3.3.2, the proper forum being section 6(6)(c) of the KRA Act; and his statutory appeal was never determined.

Reasoning

The Code bound both employer and employee. Where the employer intended the findings of internal investigations to form part of the accusations, it was obligated to comply with sections 3.2.1 to 3.2.5 of the Code, framing charges reflective of the specific violations with penalties. The minutes did not disclose the panel's composition, and the failure to process the appeal breached sections 3.4.1, 3.4.3 and 3.4.6.

p. 3
02

Whether the letter of dismissal was validly authenticated by Mrs. L.M. Malinda

Holding

No. Delegation under section 11(4) of the KRA Act required a gazette notice, and section 13(5) only permitted an appointed Commissioner to attend Board meetings without a vote; no delegation to sign dismissal letters was demonstrated.

Reasoning

The court construed sections 11(4) and 13(5) of the KRA Act together: the donee's power under section 13(5) is limited to attending Board meetings. For the signature to be valid, it had to be shown that Malinda was an officer under section 11(1) with delegated powers through a gazette notice. That was not demonstrated, so the authentication was vitiated and, violating section 3.3.3 of the Code, was invalid, null and void.

p. 3
03

Whether the respondent had valid reasons for suspending and dismissing the appellant

Holding

Even if the alleged breach of reporting instructions amounted to gross misconduct, due process under the Code had to be followed; the alleged breach was never brought to the appellant's attention or made part of the disciplinary proceedings, so the dismissal was unlawful and unfair.

Reasoning

The employer's loss of confidence could not excuse non-compliance with the Code both parties subscribed to. Nothing on the record showed the reporting-instructions breach was put to the appellant or included in the disciplinary proceedings. Independently, the dismissal preceded the acquittal and rested on internal investigations, but the process defects fatal to the dismissal stood regardless of the substantive reasons.

p. 4
04

Mode of assessment of the remedy where the dismissal is converted to normal termination

Holding

Rather than assess damages itself or remit without guidance, the court remitted to the ELRC with specific guidelines on the heads of award, following the approach in Kenya Ports Authority v Silas Obengele.

Reasoning

Neither party addressed the applicable repealed statutes (Employment Act Cap 226 and Trade Disputes Act Cap 234) governing assessment for a 2003 cause of action, and the contract governing the appellant's terms was not availed. The successful appellant was nonetheless entitled to a remedy, so the court adopted the Obengele approach of remitting with guidelines: notice pay, four months' compensation, salary during suspension, and full terminal benefits.

p. 4

Legal principles established

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  • An employer who elects to discipline an employee under its own internal Code must strictly comply with the procedural provisions of that Code; failure to frame its own charges, to empanel the properly constituted disciplinary organ, and to process a lodgement appeal renders the dismissal unlawful and unfair.
  • A dismissal letter signed by an officer without delegated authority under section 11(4) of the KRA Act, evidenced by gazette notice, is invalid, null and void, rendering the dismissal ineffective.
  • The burden of proof for an alleged breach of a contractual obligation is on a balance of probability, placed on the party asserting the facts, per sections 107, 108, 109 and 112 of the Evidence Act.
  • On a first appeal the Court re-appraises the record and draws its own conclusions, in the nature of a retrial, but interferes with findings of fact only where there is no evidence to support a conclusion, the judge failed to properly appreciate the evidence, or the trial court plainly went wrong.

Court orders

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  1. 1.A declaration that the dismissal of the appellant from the employment of the respondent effective from 7th July, 2004 was unlawful and unfair
  2. 2.The dismissal is reversed and converted to a normal termination with full terminal benefits
  3. 3.The matter is remitted back to the ELRC for assessment of the award (salary in lieu of notice; 4 months' salary as compensation for unlawful and unfair termination; salary from suspension on 7th July 2003 to dismissal on 7th July 2004 if not already paid; full terminal benefits as per the contract)
  4. 4.The claim for special damages of Kshs. 7,129,728.00, salary incremental credits and general and exemplary damages is disallowed
  5. 5.Interest on the sums awarded at court rates from 1st July, 2014
  6. 6.The appellant shall have costs of both this appeal and the Court below

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
Industrial Court of Kenya at Nairobi (now the Employment and Labour Relations Court)
Cause No. 936 of 2012
Jurisdiction invoked
First appeal to the Court of Appeal under the Court's appellate jurisdiction, with re-appraisal mandate under Rule 29(1) of the Court of Appeal Rules

Relief refused

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Special damages of Kshs. 7,129,728.00 (salary to retirement)

The court substituted lesser heads of assessment and disallowed the projected retirement salary claim

p. 4

Salary incremental credits

Disallowed along with other heads not sustained

p. 4

General and exemplary damages

Disallowed; remedy confined to normal-termination benefits and statutory-style compensation

p. 4

Costs

The appellant shall have costs of both this appeal and the Court below.

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.

Accordingly, we set aside the order dismissing the appellant's claim in its entirety, and substitute therefor an order allowing the appellant's claim. The dismissal of the appellant is converted to normal termination of employment with full benefits as per the contract of employment.
p. 4Disposition - conversion of dismissal to normal termination
1. A declaration be and is hereby granted that the dismissal of the appellant from the employment of the respondent effective from 7th day of July, 2004 was not only unlawful but unfair.
p. 4Final orders - declaration of unlawful and unfair dismissal
The matter is remitted back to the ELRC for the assessment of the award as hereunder;
p. 4Final orders - remittal with guidelines
The claim for special damages for Kshs. 7,129,728.00, salary incremental credits and General and exemplary damages are disallowed.
p. 4Final orders - heads of claim disallowed
The appellant shall have costs of both this appeal and the Court below.
p. 4Final orders - costs
It violated section.3.3.3 of the Code and was therefore invalid, null and void, rendering the appellant's dismissal ineffective.
p. 3Invalid authentication of dismissal letter
We are slow to interfere with the findings of fact made by the trial court. We interfere only where satisfied that there is no evidence to support a particular conclusion; or that the trial Judge failed to properly appreciate the evidence tendered;
p. 2First appeal - standard of interference

Issues in the judgment

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minor

The judgment inconsistently refers to the officer who signed the dismissal letter as 'Mrs. L.M. Malinda' and 'Mrs. L.N. Malinda' in the issues framed.

minor

The respondent's case name appears in variant spellings: 'Gad David Ojuando' at first citation and 'Gad Davido Ojuado' later.

minor

The sections of the Code said to justify the dismissal are inconsistently listed, with '3.5.4' repeated instead of '3.5.14' in one passage.

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, "Bramuel Dibondo Musundi v Kenya Revenue Authority [2018] KECA 582 (KLR)", Case Analysis (2018). Civil Appeal No. 358 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/582/eng@2018-05-25

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