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ELRCDismissedCause No. 1413 of 2010· [2014] KEELRC 591 (KLR)

Volenzo Tom Elijah v Attorney General (Cause 1413 of 2010) [2014] KEELRC 591 (KLR)

Industrial Court of Kenya
13 March 2014
DMD.K.N. Marete
1,465 words in judgment
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The bottom line

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Kenya's Industrial Court dismissed a project coordinator's Kshs. 8 million claim, finding his dismissal for alleged fund misappropriation followed a fair process.

What this practically means

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Executive summary

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The claimant was engaged on 10th December 2007 as District Project Co-ordinator for the Western Kenya Community Driven Development and Flood Mitigation Project under the Ministry of State for Special Programmes on an eight-year fixed contract renewable annually subject to satisfactory performance. He was suspended on 28th September 2009 over allegations of misappropriation of donor project funds, denied salary during suspension, and ultimately dismissed on 28th May 2010 retrospectively to the date of suspension. He claimed the value of the unexpired contract, unpaid salary, accrued leave, gratuity and general damages, asserting the termination was wrongful, discriminative and unprocedural and that investigations absolved him. The respondent, contending the claimant was an independent contractor remunerated from donor funds and not a public servant, maintained the termination followed proper procedure after a forensic audit implicated him and his response was unsatisfactory. The court framed three issues: lawfulness of termination, entitlement to relief, and costs. It found the claimant was informed of the audit findings and given fourteen days to respond, which he did unsatisfactorily, and did not rebut the respondent's account. The termination was held lawful; the claim for relief consequently failed on all heads. The court declined to order on the respondent's assertion that the claimant still owed a handing over report and property, but held that handing over is a recognized process of prudent industrial relations. The claim was dismissed with costs to the respondent.

Key legal issues

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01

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

Holding

The termination was lawful

Reasoning

The claimant was suspended over alleged misappropriation of donor project funds, informed of an audit implicating him, given fourteen days to respond, and dismissed after his response was found unsatisfactory. The claimant did not rebut or contradict this account, and the project collapsed after the donor withdrew funding. The court found no procedural irregularity and held the termination justified.

p. 3
02

Whether the claimant is entitled to the relief sought

Holding

He is not entitled to any relief

Reasoning

Since the termination was lawful, the claims for the value of the remaining contract term, unpaid salary, leave, gratuity and general damages all fall away. The court made no award on any head of the claim.

p. 3

Legal principles established

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  • Handing over of employer property and handing over reports are internationally recognized processes of prudent industrial relations and may be ordered even where not pleaded as a counter-claim

Court orders

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  1. 1.The claim is dismissed with costs to the respondent
  2. 2.The parties are to undertake the handing over of the respondent's property and the handing over report

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 260
  • Public Service Code of Regulations
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Industrial Court of Kenya

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, "Volenzo Tom Elijah v Attorney General (Cause 1413 of 2010) [2014] KEELRC 591 (KLR)", Case Analysis (2014). Cause No. 1413 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/591/eng@2014-03-13

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