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ELRCPartially AllowedCause No 562 of 2010· [2014] KEELRC 781 (KLR)

Jane Wanjiku Thige v City Council Of Nairobi [2014] KEELRC 781 (KLR)

Industrial Court of Kenya
29 January 2014
LNLINNET NDOLO
1,350 words in judgment
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The bottom line

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A Kenyan court ruled a council employee's dismissal unfair because she was never given a hearing, even though her misconduct conviction was a valid reason to fire her.

What this practically means

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Executive summary

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The Claimant, employed by the City Council of Nairobi as support staff from 6th March 1992 and promoted to Senior Head Messenger, was arrested on 6th March 2004 along with two colleagues on allegations of possessing fake parking tickets. She was interdicted on half salary and charged in the Anti Corruption Court, where she was convicted of destroying evidence and fined Kshs. 10,000. Her interdiction ran until February 2007, and on 10th March 2010, at a headcount, she was served with a letter dated 25th February 2010 summarily dismissing her with effect from 6th October 2004, the date of interdiction. She sued for unfair termination, claiming notice pay, 12 months' compensation, salary for the interdiction and subsequent periods, leave pay, unremitted NSSF and NHIF contributions, service pay, costs and interest, and alternatively reinstatement. The Respondent maintained the dismissal followed a decision of its committees and that the Claimant should have appealed to the Public Service Commission within 42 days. Applying Section 45(2) of the Employment Act, 2007 and the Anuro decision, the court found a valid reason for termination in her conviction, but no procedural fairness: she was never invited to the meetings discussing her dismissal nor heard under Section 41. The termination was therefore unfair. The court awarded 8 months' salary in compensation, one month's notice pay, half salary for March 2007 to February 2010, and service pay for 12 years, totalling Kshs. 408,870, plus costs, subject to statutory deductions. Claims for interdiction-period half salary and leave, and the NSSF/NHIF claims, were dismissed.

Key legal issues

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01

Whether the Respondent had a valid reason for terminating the Claimant's employment

Holding

Yes - the Claimant's conviction for destroying evidence amounted to misconduct justifying termination

Reasoning

It was uncontested that the Claimant was charged and convicted of destroying evidence, an offence amounting to misconduct in employment law and practice. She did not appeal the conviction, so it remained in force. The court therefore found a valid reason under Section 43 of the Employment Act, 2007.

p. 2
02

Whether the termination followed fair procedure under Section 41 of the Employment Act

Holding

No - the Claimant was never heard, making the termination unfair

Reasoning

The Claimant was not invited to any of the meetings at which her dismissal was discussed, and there was no evidence she was subjected to the disciplinary procedure in Section 41 or the Respondent's internal disciplinary rules. The court also noted the unexplained six-year interdiction and delay in determining her case, and found the termination unfair for want of due procedure.

p. 3
03

Whether the Respondent's plea that the Claimant should have appealed to the Public Service Commission barred her claim

Holding

The court did not accept that this barred the claim; it determined the termination on the merits

Reasoning

The Respondent argued the Claimant should have appealed to the Public Service Commission within 42 days and therefore had no right to come to court. The court did not dispose of the suit on that basis, instead addressing the substantive and procedural fairness of the dismissal and awarding remedies.

p. 2

Legal principles established

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  • For a termination to pass the fairness test there must be both substantive justification and procedural fairness
  • An employer must hear and consider an employee's representations before terminating employment for misconduct, per Section 41 of the Employment Act

Court orders

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  1. 1.Award of 8 months' salary (Kshs. 99,120) in compensation for unfair termination
  2. 2.Award of 1 month's salary in lieu of notice (Kshs. 12,390)
  3. 3.Award of half salary for March 2007 to February 2010, 36 months (Kshs. 223,020)
  4. 4.Award of service pay for 12 years at 15 days' pay per year (Kshs. 74,340)
  5. 5.Total award of Kshs. 408,870
  6. 6.Award of costs of the case to the Claimant
  7. 7.Award subject to statutory deductions in accordance with Section 49(2) of the Employment Act, 2007

Authorities

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Legislation

  • Employment Act, 2007Section 45(2)
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 41(1) and (2)
  • Employment Act, 2007Section 12
  • Employment Act, 2007Section 49(2)

Cases cited (1)

  • Walter Ogal Anuro Vs Teachers Service Commission
    [2013] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction under the Industrial Court (first-instance claim for unfair termination under the Employment Act, 2007)

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, "Jane Wanjiku Thige v City Council Of Nairobi [2014] KEELRC 781 (KLR)", Case Analysis (2014). Cause No 562 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/781/eng@2014-01-29

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