Ismail Hassan Abdullahi v Kenya Ports Authority [2013] KEELRC 845 (KLR)
The bottom line
#Kenya Ports Authority wrongly ignored its own investigators' findings when dismissing an employee, and the court awarded him nearly Kshs 400,000.
What this practically means
#Executive summary
#Key legal issues
#Applicable law on termination given the statutory transition
Conduct before 2 June 2008 is tested against the repealed Employment Act, cap 226 and the Respondent's internal regulations; conduct after that date against the Employment Act, 2007
The Employment Act, 2007 commenced on 2 June 2008 and introduced procedural fairness (section 41) and substantive fairness (sections 43, 45, 47(5)). The suspension pre-dated the new Act, but the Committee of Inquiry and the dismissal post-dated it, so the new Act governed the fairness of the process and the dismissal.
Procedural fairness
The process was procedurally fair; the Claimant was furnished with a charge sheet, participated in the Committee of Inquiry and was represented by a union official
The Claimant was charged, appeared before the Committee on 5 and 6 August 2008, was represented by Mr. Munyao of the Dock Workers Union who asked questions of witnesses, and the minutes ran to some 15 pages. The court was satisfied the process complied with the Revised Staff Regulations 2002 and section 41 of the Employment Act.
Substantive fairness
The dismissal was unfair because the Managing Director ignored the findings and recommendations of the Committee of Inquiry and the Personnel Manager without laying any basis
The Committee of Inquiry found insufficient evidence and recommended reinstatement and payment of withheld salaries; the Personnel Manager recommended a warning and transfer. The Managing Director nonetheless directed dismissal on the ground the evidence was 'too strong', without any evidential basis, and the Respondent called no eyewitnesses to discharge its burden under sections 43, 45 and 47(5).
Parallel disciplinary and criminal processes
A disciplinary process may lawfully proceed in parallel with criminal proceedings
The disciplinary process inquires into breach of the employment relationship and is governed by principles such as mutual trust and confidence, while the criminal process aims at conviction and sentence by an independent court. The employer is in charge of the former; the Republic and judiciary of the latter. Section G.5(f) of the Respondent's regulations expressly permitted parallel administrative action.
Reliance on section 17(c) of the repealed Employment Act
The dismissal could not validly rest on section 17(c) of the repealed Act as the Claimant was not charged with wilful neglect or careless performance of work; the reference was inadvertent and the 2007 Act applied at dismissal
Section 17(c) of the repealed Act dealt with summary dismissal for wilful neglect or careless and improper performance of work. The charges against the Claimant concerned theft of vehicle parts, not neglect of work. In any event, by December 2008 the Employment Act, 2007 was in force, whose section 17 deals with payment of wages, not dismissals.
Legal principles established
#- The outcome of a disciplinary process need not depend on the outcome of a parallel criminal process because the two serve different purposes and are governed by different legal principles
- Where an employer's internal fact-finders recommend lesser sanction or reinstatement, dismissal requires a demonstrated basis to depart from those findings, failing which it offends section 45(4)(b) of the Employment Act
- Costs do not automatically follow the event in the Industrial Court; the court exercises a discretion to make a just costs order
Court orders
#- 1.Declaration that the dismissal of the Claimant was not in accordance with justice and equity and therefore unfair
- 2.Award of one month's salary in lieu of notice of Kshs 32,630/-
- 3.Award of withheld salaries for 11 months and 5 days of Kshs 365,205/-
- 4.Total award of Kshs 397,835/-
- 5.Claimant to have costs of the cause with interest on the decretal sum from the time of filing the Claim
- 6.Claim for general damages declined
- 7.Respondent directed to issue the Claimant with a certificate of service pursuant to section 51 of the Employment Act
- Jurisdiction invoked
- Jurisdiction as the Industrial Court under the Employment Act, 2007 over an unfair/unlawful termination claim
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (9)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mbevi v Crystal Bay Resort (Cause E009 of 2022) [2024] KEELRC 1494 (KLR)[2024] KEELRC 1494 (KLR)2 Feb 2024
- Universities Academic Staff Union v Jomo Kenyatta University of Agriculture and Technology & 6 others [2020] KEELRC 874 (KLR)[2020] KEELRC 874 (KLR)5 Jun 2020
- Emmanuel Kasandi Mujukane & another v Cosmos Limited [2020] KEELRC 1716 (KLR)[2020] KEELRC 1716 (KLR)7 Feb 2020
- Wilson Nyaigoti Bichanga v Kisii University [2019] KEELRC 2220 (KLR)[2019] KEELRC 2220 (KLR)14 Feb 2019
- Levy Muzuni Chadiki v Wells Fargo Limited [2017] KEELRC 1977 (KLR)[2017] KEELRC 1977 (KLR)22 Sept 2017
- Hamphrey Kusesi Nashombe v Kenya Revenue Authority [2016] KEELRC 28 (KLR)[2016] KEELRC 28 (KLR)25 Nov 2016applied
- Reuben Ikatwa & 17 others v Commanding Officer British Army Training Unit Kenya & another [2015] KEELRC 1 (KLR)[2015] KEELRC 1 (KLR)2 Nov 2015
- Donald C. Avude v Kenya Forest Service [2015] KEELRC 1472 (KLR)[2015] KEELRC 1472 (KLR)26 Jan 2015
- Bottomley Musamali Jumba v Defence Forces Canteen Organization [2014] KEELRC 1124 (KLR)[2014] KEELRC 1124 (KLR)3 Jul 2014applied
Cite this brief
#Cite this brief
Caselaw, "Ismail Hassan Abdullahi v Kenya Ports Authority [2013] KEELRC 845 (KLR)", Case Analysis (2013). Not stated in the judgment (Claim filed 3 June 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/845/eng@2013-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.