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ELRCPartially AllowedCause No. 114 of 1998· [2003] KEELRC 10 (KLR)

KENYA GAME HUNTING & SAFARIS WORKERS’ UNION v RHINO SAFARIS LTD [2003] KEELRC 10 (KLR)

Industrial Court of Kenya
6 November 2003
4,197 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Union reported a trade dispute over the summary dismissal of its member, John Bwire, an Airport Representative employed by Rhino Safaris Ltd since 1980, who was dismissed on 27th August 1997 for allegedly missing an airport transfer and for unauthorised sale of a Nairobi National Park tour to third-party clients. The Union, through Mr. Kosgei, argued the charges were unproved, the investigation was conducted clandestinely in breach of natural justice, the General Manager Mr. Lacty de Sousa was the complainant, investigator, prosecutor and judge, and stale warnings over twelve months old were unlawfully relied upon contrary to Clause 7 of the collective agreement. It sought conversion of the dismissal to normal termination with full terminal dues and compensation. The Company, through Mrs. Onyango of F.K.E., maintained the dismissal was justified for gross misconduct, dishonesty and insubordination. The Court held that a dismissal is an 'economic death' requiring notice and a fair hearing, and that because Mr. de Sousa was both complainant and punishing authority, the dismissal was bad in law, applying the rule in Rex v Sussex Justices. Following the Minister's investigator's findings, the Court awarded that the summary dismissal be reduced to normal termination, terminal benefits be paid per the collective agreement, and ten months' basic salary as compensation for loss of employment. Both members concurred; the award was dated and delivered at Nairobi on 6th November 2003.

Key legal issues

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01

Bias - complainant acting as dismissing authority

Holding

The dismissal order was quashed in effect because the General Manager who levelled and investigated the charges also passed the dismissal

Reasoning

Mr. Lacty de Sousa was the complainant of almost all the charges, the investigator and the punishing authority. The Court held this violated the rule against being a judge in one's own cause and the principle that justice must be seen to be done, citing Rex v Sussex Justices, Ex parte McCarthy. His dismissal order was therefore bad in law and unsustainable.

p. 6
02

Right to a fair hearing / natural justice in domestic enquiries

Holding

The grievant was denied a fair hearing: he was not given the statements against him nor an opportunity to contradict the evidence before dismissal

Reasoning

Relying on Kanda v Government of Malaya, the Court reiterated that an employee must know the accusation and the evidence supporting it, and must have a fair opportunity to rebut it. The clandestine investigation, conducted in secrecy without hearing the grievant, fell below the barest minimum of a domestic enquiry.

p. 5
03

Reliance on stale warnings under the collective agreement

Holding

Warnings more than 12 months old should have been expunged under Clause 7 of the collective agreement and could not found dismissal

Reasoning

Clause 7 of the collective agreement provides that warnings lapse after 12 months without offences. The warnings of 25th February 1992 and 23rd November 1995 were stale and should have been cancelled; the Minister's investigation had likewise found the expired warning ought to have been expunged.

p. 3

Legal principles established

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  • No officer can act as prosecutor and judge in his own cause; a dismissal order passed by a person who is the complainant is bad in law and cannot stand
  • Dismissal carries serious consequences and requires notice and a fair opportunity to be heard - the barest minimum of a domestic enquiry
  • Justice must not only be done but be seen to be done

Court orders

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  1. 1.That the summary dismissal of the grievant be reduced to normal termination of service
  2. 2.That the grievant be paid all his terminal benefits, including pay in lieu of notice, gratuity, pay of unavailed leave, if any, in terms of the parties' collective agreement in force at the material time
  3. 3.That, in addition, the grievant be paid ten (10) months' basic salary as compensation for loss of employment

Authorities

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Legislation

  • Trade Disputes Act, Cap. 234, Laws of KenyaSection 14(7) and (9)(e) and (f)
  • Companies Act, Cap. 486, Laws of Kenya
  • Employment Act, Cap. 226, Laws of Kenya
  • European Economic Community Consumer Protection Regulations, 1992 (package travel, holidays and tours)

Cases cited (2)

  • Kanda V. Government of Malaya
    (1962) A.C. 322
  • Rex V. Sussex Justices, Ex parte McCarthy
    (1927) 2 K.B. 476
Jurisdiction invoked
Trade Disputes Act, Cap. 234, Section 14(7) and (9)(e) and (f)

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, "KENYA GAME HUNTING & SAFARIS WORKERS’ UNION v RHINO SAFARIS LTD [2003] KEELRC 10 (KLR)", Case Analysis (2003). Cause No. 114 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2003/10/eng@2003-11-06

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