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ELRCPartially AllowedMemorandum of Claim dated 9th March 2011, filed 10th March 2011· [2014] KEELRC 241 (KLR)

Fredrick Magera v National Water Conservation & Pipeline Corporation [2014] KEELRC 241 (KLR)

Industrial Court of Kenya
1 October 2014
2,710 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 ruled an employee exonerated by the board cannot be dismissed again over the same allegations, and ordered his full reinstatement with back pay.

What this practically means

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Executive summary

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The Claimant, seconded from the Ministry of Water Development to the Respondent in 1990 and risen to Senior Accountant/acting Chief Management Accountant, was investigated over a non-disclosed debt of approximately Kshs.411 million. The Board, at its 3rd meeting of 26th June 2009, found he was not involved in compiling the creditors' list, had disclosed the debt upon discovery, and discharged him from the allegations, resolving that he be pardoned, warned and redeployed. He was redeployed, but in November 2009 a new Acting Managing Director, Eng. P.A. Ogutu, sent him on compulsory leave and summoned him before the Human Resource and General Purpose Committee without notice of charges. By letter dated 26th February 2010 he was summarily dismissed for concealing information and negligence of duty, forfeiting service benefits. The Claimant sought special damages of Kshs.34,979,245/- or reinstatement with full benefits, interest and costs. The Respondent's sole witness, a HR officer who joined in 2013 and had no personal knowledge of the matter, could not rebut the Claimant's evidence. The Court found the dismissal without valid reason and unfair procedure, the second disciplinary process unlawful as double jeopardy contrary to natural justice, and the conduct a violation of Article 47 of the Constitution and Sections 45(1) and (2) of the Employment Act. Exercising discretion under Section 49(4), the Court ordered reinstatement as at 26th February 2010, payment of arrear remuneration with interest at court rates, computation of the sum within 30 days, and costs to the Claimant. Judgment delivered at Nairobi on 1st October 2014 by Mathews N. Nduma, Principal Judge.

Key legal issues

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01

Validity of reason and fairness of procedure for summary dismissal

Holding

The Respondent had no valid reason and the procedure was unfair, violating Sections 45(1) and (2) of the Employment Act

Reasoning

The Claimant had been investigated, deliberated upon and absolved by the Board, which resolved he be pardoned, warned and redeployed. A new Managing Director revived the same allegations without notice of charges or a show-cause letter and dismissed him. His testimony and documentary evidence remained uncontroverted, as the Respondent declined to call the dismissing officer. The dismissal was therefore for no justified reason and without fair procedure.

p. 5
02

Double jeopardy in successive disciplinary processes

Holding

A second disciplinary process on the same facts after exoneration was unlawful, contravening legality, natural justice and amounting to double jeopardy

Reasoning

The Board's 3rd meeting of 26th June 2009 discharged the officer from allegations over the non-disclosed debt of Kshs.411 million and resolved he be pardoned, warned and redeployed. Subjecting him afresh to the Human Resource and General Purpose Committee on the same issue, without specifying charges, was unfair administrative action violating Article 47 of the Constitution and actuated by malice by the Acting Managing Director.

p. 5
03

Reinstatement as remedy

Holding

Reinstatement was granted, treating the dismissal as a nullity, with full arrear remuneration and interest

Reasoning

Applying Section 49(4) factors: the claim was filed within the statutory period, the employee wished reinstatement, he had done no wrong after twenty years of service, the Respondent is a public entity, his age limited alternative employment, and no compensation under Section 49 would adequately mitigate his loss. Legitimate expectation supported reinstatement until retirement.

p. 6

Legal principles established

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  • Subjecting an employee to a second disciplinary hearing on the same facts on which he had been exonerated contravenes the principles of legality and natural justice and amounts to double jeopardy
  • Where an employer fails to call the witness with personal knowledge of the dismissal, the claimant's uncontroverted testimony stands proven on a balance of probabilities

Court orders

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  1. 1.The Respondent to reinstate the Claimant to the substantive position he held as at 26th February 2010 and treat him in all respects as if his employment had not been terminated
  2. 2.All arrear remuneration from 26th February 2010 to the date of reinstatement to be paid with interest at Court rates till payment in full
  3. 3.The sum to be computed and filed with the Court within 30 days
  4. 4.The Respondent to pay costs of the suit

Authorities

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Legislation

  • Employment ActSections 45(1) and (2), 49, 49(3)(a), 49(4)
  • Industrial Court ActSection 12
  • Constitution of KenyaArticle 47
  • State Corporations Actnot specified
  • Respondent's Code of RegulationsSections 11.22 (viii), (xviii) and 11.34
  • Labour lawsnot specified
Jurisdiction invoked
Section 12 of the Industrial Court Act as read with Section 49(3)(a) of the Employment Act

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, "Fredrick Magera v National Water Conservation & Pipeline Corporation [2014] KEELRC 241 (KLR)", Case Analysis (2014). Memorandum of Claim dated 9th March 2011, filed 10th March 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/241/eng@2014-10-01

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