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ELRCPartially AllowedCause No. 1238 of 2012· [2013] KEELRC 967 (KLR)

Daniel Okoth v Kenya Commission Of Human Rights [2013] KEELRC 967 (KLR)

Industrial Court of Kenya
20 December 2013
DMD.K.N. Marete
3,277 words in judgment
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The bottom line

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A Kenyan court dismissed an employee's unfair termination claim and ordered him to pay his former employer Kshs.891,060 because his own misconduct caused the dismissal.

What this practically means

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Executive summary

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The claimant, formerly Principal Human Rights Officer in charge of Media & Communication with the respondent, sued for unlawful termination of employment and non-payment of terminal dues, seeking special damages of Ksh8,650,999, general aggravated and exemplary damages, costs and interest. He was interdicted on 21st February 2012 and dismissed with effect from 21st March 2012 for misconduct, gross negligence and insubordination, notably his handling of the respondent's 7th Human Rights and Democracy Awards, which were cancelled after the wrong nomination criteria were advertised in the press. The respondent denied the claim, maintained that disciplinary and appellate processes under its Human Resource & Administration Manual were exhausted, and counter-claimed Kshs.1,485,101 for the abortive Awards plus public embarrassment, and sought a permanent injunction against a negative media campaign. The court framed four issues: fairness of the termination, entitlement to relief, the counter-claim, and costs. Relying on the disciplinary and appeal panel findings, including that the claimant committed major misconduct under clause 15.2 of the Manual, the court held the termination was not unfair and dismissed the claim, with the relief collapsing in toto. On the undefended counter-claim, the court accepted the appeal panel's finding that institutional failings were as much responsible for the Awards' failure, and awarded the respondent 60% of the counter-claim, Kshs.891,060.60. The claim was dismissed with costs to the respondent. Judgment was delivered by D.K.N. Marete, J on 20th December 2013.

Key legal issues

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01

Whether termination of the claimant's employment was unfair, unlawful and wrongful

Holding

Not unfair; valid grounds of misconduct, gross negligence and insubordination existed and due process including an appeal was afforded

Reasoning

The court accepted the disciplinary and appeal panel findings that the claimant committed major misconduct under clause 15.2 of the Human Resource & Administration Manual, including disrespect, insubordination and gross negligence over the Awards. He was heard, and his appeal was determined. Compliance with Articles 41 and 47 and sections 41, 43 and 45 of the Employment Act, 2007 was found.

p. 8
02

Whether the claimant was entitled to relief

Holding

No; relief collapses with the failed unfair termination claim

Reasoning

Having failed to establish unfair termination, the claimant could not sustain the claim for special, general, aggravated and exemplary damages. The court held the claim for relief falls away in its entirety.

p. 8
03

Whether the respondent was entitled to the counter-claim of Kshs.1,485,101 for negligence

Holding

Partially; the respondent was awarded 60% of the counter-claim

Reasoning

The court found the claimant, as head of Public Affairs and Communications, bore key responsibility for the failed Awards, including the wrong nomination criteria advertisement. The claimant filed no defence to the counter-claim. However, the appeal panel had found institutional failings equally responsible, so full liability of 80% was not appropriate; 60% was awarded.

p. 9

Legal principles established

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  • An employee whose dismissal follows a disciplinary process establishing valid grounds and according him a hearing has no claim for unfair termination
  • An employer may recover a portion of losses caused by an employee's negligence proportionate to the employee's liability relative to institutional failings

Court orders

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  1. 1.Dismissal of the claimant's suit
  2. 2.Judgment for the respondent on the counter-claim for 60% of Kshs.1,485,101.00, being Kshs.891,060.60
  3. 3.Costs of the suit to the respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 47
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45
  • Human Resource & Administration Policy/ManualSections 15.2 and 16.1.1
Jurisdiction invoked
Employment and labour relations jurisdiction of the Industrial Court (employment dispute; Employment Act, 2007 and Article 41 Constitution of Kenya, 2010 invoked)

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, "Daniel Okoth v Kenya Commission Of Human Rights [2013] KEELRC 967 (KLR)", Case Analysis (2013). Cause No. 1238 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/967/eng@2013-12-20

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