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ELRCDismissedCause No 366 of 2010· [2013] KEELRC 185 (KLR)

Peter Akidah Ombuoro v South Nyanza Sugar Company Limited [2013] KEELRC 185 (KLR)

Industrial Court of Kenya at Nairobi
26 June 2013
DMD.K.Njagi Marete
2,436 words in judgment
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The bottom line

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Kenya's Industrial Court ruled that a fair disciplinary hearing can happen through letters, so the sacked employee's unfair dismissal claim failed.

What this practically means

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Executive summary

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The claimant, employed by the respondent from 1st January 1986 as an Accounts Clerk and later Audit Supervisor, was issued three show cause letters between November 2006 and August 2007 alleging fraudulent self-harvesting and trading in non-contracted cane through his wife, disruption of operations at the weighbridge, and conflict of interest in dealings with a trailer owner, in breach of the company's Staff Administrative Code and the Public Officer Ethics Act. His explanations were found inadmissible and his employment was terminated on 29th August 2007 for loss of faith, indiscipline and gross misconduct. He sought reinstatement, salary for the period out of employment, terminal benefits, compensation of twelve months' gross salary, costs and interest, contending he was never invited to disciplinary hearings or given particulars. The respondent defended the termination as procedurally sound, alleging fraud, conflict of interest and prior misconduct. At the hearing on 5th November 2012 the claimant denied the allegations; the respondent called two witnesses on the weighbridge incident and the investigation. The court framed three issues: lawfulness of the termination, entitlement to relief, and costs. Adopting the respondent's submission citing Kenya Revenue Authority v Menginya Salim Murgani on the fairness of written hearings, the court held the claimant was afforded a fair hearing through the show cause correspondence and that the reasons for termination were justified. The claim was dismissed with costs to the respondent on 26th June 2013.

Key legal issues

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01

Whether the termination of the claimant's employment was unlawful

Holding

The termination was lawful and justified; the claimant was afforded a fair hearing through show cause correspondence and the grounds of fraud, conflict of interest and misconduct were made out

Reasoning

The court found that the claimant was involved in an elongated process of show cause correspondence in which he was given an opportunity to respond to the allegations of fraud, conflict of interest and misconduct. His explanations were found unsatisfactory, rude and arrogant. Reliance was placed on the Kenya Revenue Authority v Menginya Salim Murgani decision on the fairness of written hearings. The reasons for termination were therefore justified and the procedure fair.

p. 5
02

Whether the claimant is entitled to the relief sought

Holding

No; the dismissal of the claim disentitles him to any relief

Reasoning

Having found that the termination was justified and lawful, the court held that the dismissal of the cause disentitled the claimant to any relief. The claims for reinstatement, salary during the period out of employment, terminal benefits and compensation all fell away with the dismissal of the primary claim.

p. 5
03

Who bears the costs of the cause

Holding

The claimant to bear the costs of the case

Reasoning

As the claim failed, the claimant was ordered to meet the costs of the case, with costs awarded to the respondent in line with the ordinary rule that costs follow the event.

p. 5

Legal principles established

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  • A disciplinary hearing need not be oral; fairness may be satisfied through an exchange of letters/show cause correspondence

Court orders

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  1. 1.Dismissal of the claimant's claim with costs to the respondent

Authorities

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Legislation

  • Public Officer Ethics ActSection 12
  • Public Officers Ethics Act, Chapter 183, Laws of KenyaSection 12
  • Staff Administrative Code (SAC) / Standard Administrative Code of the respondentClause 12 (including 12(2-6))

Cases cited (1)

  • Kenya Revenue Authority vs Menginya Salim Murgani
    Civil Appeal No. 108 of 2010
Jurisdiction invoked
Industrial Court at Nairobi, Cause No 366 of 2010 (reference to Section 12 of the Public Officers Ethics Act, Chapter 183, Laws of Kenya and company Staff Administrative Code in dispute)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Peter Akidah Ombuoro v South Nyanza Sugar Company Limited [2013] KEELRC 185 (KLR)", Case Analysis (2013). Cause No 366 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/185/eng@2013-06-26

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