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ELRCPartially AllowedCause 78 of 2011· [2012] KEELRC 72 (KLR)

PAUL MWAURA MBUGUA V KAGWE TEA FACTORY LTD & ANOTHER [2012] KEELRC 72 (KLR)

Industrial Court of Kenya
10 December 2012
LNLINNET NDOLO
1,308 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that suspending an employee without pay for over seven months was unlawful, and the employer had to pay full salary for that period.

What this practically means

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Executive summary

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The Claimant, employed as a Senior Mechanic at the 1st Respondent's factory from 1st March 1998, was issued a show-cause letter on 24th February 2008 regarding absence from duty and missing spare parts. He replied on 20th March 2008, denying involvement with the missing parts. On 24th March 2008 he was suspended from duty. The Respondents then communicated nothing to him until 29th October 2008, when he applied for Voluntary Early Retirement. On 4th December 2008 the 2nd Respondent construed this as a resignation and accepted it, paying the Claimant Kshs. 252,423.75 in terminal benefits in July 2009. The Claimant sued for unlawful suspension and unfair termination, claiming unpaid salary from March 2008 to July 2009, gratuity for 2009, punitive and general damages, a formal termination letter and testimonial, plus costs and interest. The Respondents' witnesses confirmed that a disciplinary panel planned to hear the Claimant's case never materialised and that investigations were abandoned. Relying on its earlier decision in Bartholomew Wanyama v Moses Gitari, the Court held that suspension is an interim measure, not termination, and that keeping an employee on unpaid suspension for over seven months while waiting for him to 'blink first' was unlawful and inhumane. The suspension was declared unlawful and the Claimant awarded full salary from March to October 2008 and a Certificate of Service. Because his Voluntary Early Retirement letter effectively ended the employment in October 2008, salary beyond October 2008 and the 2009 gratuity were declined. Costs were awarded to the Claimant.

Key legal issues

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01

Whether the 7-month suspension of the Claimant was lawful

Holding

The suspension was unlawful; the Claimant is awarded full salary from March 2008 to October 2008

Reasoning

Suspension is an interim measure to allow investigation, not an end in itself. The Claimant was suspended on 24 March 2008 and heard nothing from the Respondents until he applied for Voluntary Early Retirement on 29 October 2008. RW2 testified investigations normally take 3 months and a disciplinary panel was planned but never constituted. Prolonging suspension without pay for over 7 months, effectively waiting for the employee to 'blink first', was unlawful and inhumane.

p. 3
02

Whether the termination of employment was unfair

Holding

The Claimant himself terminated his employment by applying for Voluntary Early Retirement; the Respondents' investigations were abandoned and no disciplinary hearing ever took place

Reasoning

The Claimant was kept on suspension so long that he grew weary and applied for Voluntary Early Retirement on 29 October 2008, which the Respondents construed as resignation on 4 December 2008. The investigations appear to have been abandoned at that stage, and no disciplinary panel was ever constituted to hear the Claimant's case on the missing spare parts. His employment therefore ended by his own letter in October 2008, capping the salary award and defeating the 2009 gratuity claim.

p. 3

Legal principles established

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  • Suspension is an interim measure to allow investigation, not a termination; after investigation concludes, further action must be taken and the employee remains an employee during suspension
  • An employee on suspension has a legitimate expectation of being given an opportunity to defend themselves against adverse findings from the investigation
  • Keeping an employee on suspension without pay for over 7 months awaiting investigation is unlawful and inhumane; investigations should normally take about 3 months

Court orders

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  1. 1.Award of full salary from March 2008 up to October 2008 when the Claimant applied for Voluntary Early Retirement
  2. 2.Respondents ordered to issue the Claimant with a Certificate of Service
  3. 3.Respondents to pay the costs of the case
Jurisdiction invoked
Employment and labour relations dispute within the jurisdiction of the Industrial Court of Kenya (Cause No. 78 of 2011)

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, "PAUL MWAURA MBUGUA V KAGWE TEA FACTORY LTD & ANOTHER [2012] KEELRC 72 (KLR)", Case Analysis (2012). Cause 78 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/72/eng@2012-12-10

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