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ELRCDismissedCause 785 of 2010· [2013] KEELRC 286 (KLR)

MOSES KIPLAGAT CHANGWONY V TANA AND ATHI RIVERS DEVELOPMENT AUTHORITY [2013] KEELRC 286 (KLR)

Industrial Court of Kenya
24 May 2013
5,851 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court dismissed a former state corporation MD's claims that suspension without pay forced him out, ruling his resignation was premature and the employer acted within its regulations.

What this practically means

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Executive summary

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The claimant, former Managing Director of Tana and Athi Rivers Development Authority, sued seeking a declaration that he was unlawfully and unfairly constructively dismissed, reinstatement, alternatively Kshs.9,720,000 being salary and allowances for the unserved three-year term of his renewed contract, gratuity of Kshs.3,013,200 at 31% per year for six years, interest, costs and damages. He was suspended without pay on 14th February 2006 pending investigations into alleged irregular procurement of a Mercedes Benz, irregular hire of equipment and other procurement irregularities, was charged before the Anti-Corruption Court and acquitted under Section 210 of the Criminal Procedure Code, and resigned on 24th July 2006 alleging his suspension without pay was designed to force him out. The parties proceeded by documents and written submissions without oral evidence. The court found the suspension was lawful and in accordance with TARDA Code Regulations 7.15(e) and (f), which permitted suspension without pay pending investigations into serious financial misconduct, and that the Chairman acted without malice, indicating that withheld salary would be restored retroactively if the suspension was rescinded. The court held that acquittal in a criminal trial, where the standard is proof beyond reasonable doubt, does not preclude disciplinary action on a balance of probabilities. The claimant resigned before the disciplinary process and investigations concluded. The court found the particulars of constructive dismissal unsupported, dismissed the declaration, reinstatement, salary and gratuity claims, and made no order as to costs on equitable considerations given the claimant's financial circumstances.

Key legal issues

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01

Whether the suspension without pay amounted to constructive dismissal

Holding

No. The suspension was in accordance with TARDA Code Regulation 7.15(e) and (f), pending investigations of serious misconduct, and the Chairman followed the regulations without malicious intent; the claimant resigned before the process concluded.

Reasoning

The court found the suspension was authorised by the TARDA Code which allowed suspension without pay pending investigations into misappropriation. The Chairman's letter showed the salary would be restored retroactively if the suspension was rescinded, negating malice. The claimant did not await the outcome of investigations or the criminal trial, but resigned on 24th July 2006. The respondent justified its interim measures as reasonable for a public corporation facing serious allegations, and the claimant cited no regulation entitling him to pay during suspension.

p. 10
02

Effect of the criminal acquittal on disciplinary liability

Holding

The acquittal under Section 210 of the Criminal Procedure Code did not exonerate the claimant in disciplinary proceedings, where the standard of proof is a balance of probabilities.

Reasoning

The claimant was acquitted for failure by the prosecution to prove conspiracy to defraud beyond reasonable doubt. In civil and disciplinary proceedings the threshold is much lower. The respondent had independent disciplinary processes, and the Inspectorate of State Corporations was entitled under the State Corporations Act to investigate and report. The court rejected the claimant's contention that the investigations and criminal referral were unlawful or unprocedural.

p. 8
03

Whether the claimant proved entitlement to gratuity

Holding

No. The pleadings did not disclose the basis of the gratuity claim and no viva voce evidence was adduced.

Reasoning

The parties dispensed with oral evidence and proceeded by documents and written submissions. The court found insufficient material to determine the gratuity claim in the claimant's favour, especially with respect to the contract already served, and dismissed that prayer.

p. 11

Legal principles established

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  • Under Section 47(5) of the Employment Act, the employee bears the burden of proving unfair termination or wrongful dismissal, while the employer bears the burden of justifying the grounds for termination
  • In disciplinary proceedings, proof of misconduct is on a balance of probabilities, a lower threshold than the criminal standard, so acquittal in a criminal trial does not preclude disciplinary action
  • Constructive dismissal requires the employee to show that the employer committed a serious breach of contract which forced the employee to leave, and that the employee did not accept the breach before resigning

Court orders

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  1. 1.The claimant's claim for a declaration of unlawful and unfair constructive dismissal is dismissed
  2. 2.The prayer for reinstatement is dismissed
  3. 3.The alternative prayer for payment of Kshs.9,720,000 being salary and allowances for the unserved three-year contract term is dismissed
  4. 4.The claim for gratuity of Kshs.3,013,200 is dismissed
  5. 5.No order as to costs

Authorities

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Legislation

  • Employment ActSection 47(5)
  • Tana and Athi River Development Authority Act, Cap.443Section 10 and 10(a)
  • State Corporations Act, Cap.446Section 118(3)
  • Penal CodeSections 101(1) and 317
  • Criminal Procedure CodeSection 210
  • Anti-Corruption and Economic Crime ActSection 63
  • TARDA Employee Staff Manual Code of Regulations (TARDA CODE)Regulations 7.13.4 and 7.15(e), (f)

Cases cited (3)

  • Moses Dlamini and Bromor Food Swaziland (pty) Ltd
    I.C. Case No.127 of 1997, p.7
  • Ferrant V Key Delta
    (1993) 14 KJ at pg.464
  • Republic -Vs- Moses Kiplagat Changwony
    Criminal Case No.2273 of 2006
Jurisdiction invoked
Jurisdiction of the Industrial Court of Kenya over employment and labour relations disputes (Cause filed under the Industrial Court's jurisdiction in 2010)

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, "MOSES KIPLAGAT CHANGWONY V TANA AND ATHI RIVERS DEVELOPMENT AUTHORITY [2013] KEELRC 286 (KLR)", Case Analysis (2013). Cause 785 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/286/eng@2013-05-24

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