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ELRCPartially AllowedMemorandum of Claim filed 30th September, 2013 (ELRC, Nyeri)· [2014] KEELRC 777 (KLR)

Joseph Nderitu Chege v Postal Corporation of Kenya [2014] KEELRC 777 (KLR)

Employment and Labour Relations Court
24 January 2014
3,829 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, Regional Manager Central Region of the Postal Corporation of Kenya, was suspended by a letter dated 24th September 2013 on the ground that he had irregularly leased and executed a lease over the Karatina Post Office open space without following due process. He sued seeking a declaration that the suspension was unfair, and orders stopping all disciplinary processes arising from the lease and barring any disciplinary action on the lease issues. He also obtained ex-parte interlocutory orders which the respondent sought to discharge. By consent, the interlocutory motions and the main claim were disposed of together. The court framed two issues: whether the suspension was procedural and consistent with natural justice, and the effect of the respondent's subsequent letters (a dismissal letter of 27th September 2013, compulsory leave of 8th October 2013, appointment to the 'Huduma' Project of 4th November 2013 and transfer to Nairobi of 1st November 2013). The court held that although the respondent properly invoked its disciplinary procedures' suspension clause, the suspension was unprocedural and unfair; the undelivered dismissal letter and compulsory leave letter related to a separate procurement matter, and the later appointment and transfer rendered the suspension superfluous. The court declared the suspension unfair, rescinded it, refused to bar future disciplinary action but directed that any such action observe procedural fairness, good faith and natural justice, and awarded the claimant costs. The suit succeeded partially.

Key legal issues

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01

Procedural fairness of the suspension

Holding

The suspension was correctly initiated under the respondent's disciplinary procedures but was nonetheless unprocedural and unfair in its execution

Reasoning

The court found the accusation of irregularly leasing the Karatina plot fell within the suspension clause's grounds (neglect of duty), so invoking suspension was proper. However, the suspension letter neither detailed the irregularity nor asked the claimant to show cause, and was issued without prior notice or hearing. Additionally, the respondent's subsequent conduct of suspending, dismissing and sending the claimant on compulsory leave within two weeks evidenced lack of good faith, rendering the suspension unfair.

p. 6
02

Prematurity of the claim regarding salary deprivation

Holding

The suit on the no-salary-during-suspension clause was premature because the claimant had not exhausted the contractual disciplinary mechanism

Reasoning

Although the clause depriving a suspended employee of salary appeared to depart from ordinary Human Resource practice (where employees on suspension are often placed on half salary), the court held it could not rewrite a voluntarily entered contract. The claimant's complaints about the leasing being lawful should have abided the outcome of the investigation; hence the suit was premature to that extent.

p. 6
03

Effect of the respondent's subsequent letters on the suspension

Holding

The undelivered dismissal letter and the compulsory leave letter related to a different disciplinary matter, while the later appointment and transfer rendered the suspension superfluous

Reasoning

The dismissal letter of 27th September 2013 was never delivered or communicated to the claimant, so it could not supersede the suspension. The compulsory leave letter of 8th October 2013 concerned procurement breaches, not the Karatina lease. The court found the sequence of suspending, dismissing and placing on compulsory leave within two weeks 'quite some charade if not evidence of vendetta', and the subsequent appointment and transfer rendered the suspension inconsequential.

p. 6

Legal principles established

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  • A suspension without notice or a chance to be heard is unprocedural and unfair, even where the employer has a contractual power to suspend
  • The court will not rewrite a contract voluntarily entered into by parties provided it conforms to relevant statutes and the constitution
  • Subsequent inconsistent actions by an employer (dismissal, compulsory leave, fresh appointment and transfer) can render a suspension inconsequential

Court orders

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  1. 1.Declared that the claimant's suspension communicated by the letter dated 24th September, 2013 was unfair
  2. 2.Order rescinding the suspension
  3. 3.Any disciplinary action against the claimant, if necessary, must be carried out with procedural fairness, good faith, natural justice and in accordance with the laid down internal disciplinary mechanism
  4. 4.Claimant awarded the costs of the suit

Authorities

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Legislation

  • Employment Actnot specified (disciplinary procedures drawn from its provisions)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under rule 16 of the Court's rules; employment dispute

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, "Joseph Nderitu Chege v Postal Corporation of Kenya [2014] KEELRC 777 (KLR)", Case Analysis (2014). Memorandum of Claim filed 30th September, 2013 (ELRC, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/777/eng@2014-01-24

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