Bottomley Musamali Jumba v Defence Forces Canteen Organization [2014] KEELRC 1124 (KLR)
The bottom line
#A Kenyan employer paid Kshs 844,563 because it denied an employee time to respond to disciplinary charges and ignored its own disciplinary panel's recommendation.
What this practically means
#Executive summary
#Key legal issues
#Whether the suspension was lawful
The suspension was irregular because it exceeded the 30-day limit in Clause 51(b) of the Respondent's Terms and Conditions of Service, the case not being with the Police or before a court.
Clause 51(b) prohibited suspensions exceeding thirty consecutive days unless investigations were with the Police or the case pending before a court. The Claimant was suspended without pay for three months, and neither exception applied. The Respondent's own witness admitted in cross-examination that the suspension contravened Clause 51(b). The Court therefore found the Respondent flouted its own Terms and Conditions of Service.
Whether the dismissal was procedurally fair
The disciplinary proceedings on 27th June 2012 failed the Section 41 procedural fairness standard because the Claimant was served seven charges the same day he was to appear before the Disciplinary Board.
Section 41 of the Employment Act requires the employer to explain reasons, allow a representative, and hear the employee's explanations. Service of seven charges on the same day as the hearing deprived the employee of sufficient time to prepare a defence. It is irrelevant that the employee did not object or ask for an extension of time. The proceedings therefore did not meet the required procedural fairness standards.
Whether the dismissal was substantively fair
The dismissal was unfair because the Managing Director departed from the Disciplinary Board's recommendation of demotion without offering any explanation.
The Disciplinary Board recommended demotion to JG. 8 and posting out, not dismissal. The Managing Director nonetheless terminated the Claimant's services without any explanation for differing from the Board. Applying Section 45(4)(b) of the Employment Act as explained in Ismail Hassan Abdullahi v Kenya Ports Authority, a dismissal contrary to the employer's own disciplinary panel's recommendations without basis is not in accordance with justice and equity.
Whether the Counterclaim was proved
The Counterclaim for loss of goods worth Kshs. 4,109,975.78 was dismissed for want of evidence.
Although the Respondent alleged that the Claimant's negligence caused loss of goods worth Kshs. 4,109,975.78, it adduced no evidence to support the Counterclaim at trial. A party asserting a claim bears the burden of proving it; failure to adduce evidence meant the Counterclaim could not stand and was dismissed in its entirety.
Legal principles established
#- An employer who requires an employee to respond to charges on the same day the charges are served does not afford the employee the right to be heard under Section 41 of the Employment Act, whether or not the employee objects.
- Dismissal contrary to the recommendations of the employer's own disciplinary panel without any basis is not in accordance with justice and equity under Section 45(4)(b) of the Employment Act.
Court orders
#- 1.Award of salary for May, June and July 2012 of Kshs. 140,241
- 2.Award of 12 months' salary in compensation for unfair termination of Kshs. 560,964
- 3.Award of one month's salary in lieu of notice of Kshs. 46,747
- 4.Award of salary for 8 days worked in August 2012 of Kshs. 12,466
- 5.Award of leave pay (42 days for 2010 and 2011 plus 12 days for 2012) of Kshs. 84,145
- 6.Total award of Kshs. 844,563 in favour of the Claimant
- 7.Dismissal of the Respondent's Counterclaim in its entirety
- 8.Respondent to pay the costs of the case
- 9.Interest on the award at court rates from the date of the award until payment in full
- Jurisdiction invoked
- Employment and labour relations dispute under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Alex v Unilever Tea Kenya Limited (Cause 105 of 2019) [2022] KEELRC 1620 (KLR)[2022] KEELRC 1620 (KLR)28 Jul 2022applied
- Kenya Plantation and Agricultural Workers Union v Migotiyo Plantations Limited [2021] KEELRC 139 (KLR)[2021] KEELRC 139 (KLR)15 Dec 2021applied
- Kenya Plantation & Agricultural Workers Union v Migotiyo Plantations Limited [2021] KEELRC 168 (KLR)[2021] KEELRC 168 (KLR)15 Dec 2021
- Mary Nduku Mumo v ALS Limited [2015] KEELRC 939 (KLR)[2015] KEELRC 939 (KLR)19 Jun 2015applied
Cite this brief
#Cite this brief
Caselaw, "Bottomley Musamali Jumba v Defence Forces Canteen Organization [2014] KEELRC 1124 (KLR)", Case Analysis (2014). Cause No 2534 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1124/eng@2014-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.