MOSES KIPLAGAT CHANGWONY V TANA AND ATHI RIVERS DEVELOPMENT AUTHORITY [2013] KEELRC 286 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the suspension without pay amounted to constructive dismissal
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.
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 The Chairman's letter showed the salary would be restored retroactively if the suspension was rescinded, negating malice.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.
Effect of the criminal acquittal on disciplinary liability
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.
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.
Whether the claimant proved entitlement to gratuity
No. The pleadings did not disclose the basis of the gratuity claim and no viva voce evidence was adduced.
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.
Legal principles established
#- 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
#- 1.The claimant's claim for a declaration of unlawful and unfair constructive dismissal is dismissed
- 2.The prayer for reinstatement is dismissed
- 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.The claim for gratuity of Kshs.3,013,200 is dismissed
- 5.No order as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.