Grace Bosibori Nyamongo v Kenya Institute of Administration [2014] KEELRC 1490 (KLR)
The bottom line
#A Kenyan court ruled that firing an employee without first asking for their explanation is unfair, even if the employee stayed away too long.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the Claimant's employment was unfair
The termination was unfair because the Respondent failed to follow fair procedure under section 41 of the Employment Act; it knew the Claimant's whereabouts and never sought her explanation before terminating for vacation of office, nor had it communicated a decision on her extension application.
Section 41 requires an employer to explain reasons and hear representations before termination. The Respondent relied on paragraph 12.11.1 permitting termination for absence without permission for 7 continuous days, but the Claimant had applied through her supervisor for a 4-month extension of unpaid study leave and the Respondent had said the request would go to council. The court held the Respondent was aware of her whereabouts and ought to have asked why she had not reported before deciding. Validity of reason and fair procedure must both be proved; the latter was not, so the termination was unfair.
Whether the refusal to grant paid study leave was unfair and unlawful
The refusal was not unfair; the Claimant was informed of the reasons and chose to apply for unpaid study leave rather than abandon the scholarship.
The Respondent's letter of 28th July 2003 explained why paid study leave could not be granted: the application did not go through the Director's office or Staff Development Committee and the four-year course was too long. The Claimant then elected to apply for unpaid leave, which was granted on stated conditions. Other employees were likewise on unpaid study leave. Her election meant the denial of paid leave was not unfair.
Whether reinstatement should be ordered
Reinstatement was declined because more than 3 years had elapsed since termination, but the Respondent was ordered to reopen an offer of re-engagement to a position commensurate with the Claimant's current qualifications.
Section 12(3)(vii) of the Industrial Court Act permits reinstatement only within 3 years of termination, and that window had passed. Section 49(4)(c) and (d) of the Employment Act also directs the court to consider practicability and the common law bar on specific performance of employment contracts. The Respondent had indicated willingness to re-engage the Claimant as a new employee, so the court ordered the offer reopened with 30 days for acceptance.
Whether damages for lost income (past, future, and to retirement age) are recoverable
All claims for lost income were dismissed; neither statute provides for such damages and the mitigation principles in Marete and Menginya Salim Murgani preclude anticipatory salaries.
The court adopted the reasoning in D.K.N. Marete v Teachers Service Commission and Menginya Salim Murgani v Kenya Revenue Authority: an aggrieved employee must move on and mitigate loss; awards of anticipatory salaries to retirement age would facilitate double remuneration, offend the principle of a fair go all round, and multiply remedies. Anticipatory remuneration based on sanguine assessments of prospects is injudicious.
Whether general damages should be awarded
General damages of 12 months' gross salary (Kshs.648,863) awarded as compensation for loss of income between termination and reinstatement.
Both the Employment Act and the Industrial Court Act permit an award of general damages. Having found the termination unfair and having ordered re-engagement, the court used 12 months' gross salary based on the Claimant's last gross salary of Kshs.54,072 to cushion her for the period between termination and reinstatement.
Legal principles established
#- For a termination of employment to be valid, the employer must prove both the validity of the reason and that fair procedure was followed.
- An employee absent from duty is not absent without permission if the employer is aware of the employee's whereabouts and the absence has lawful cause; the employer must seek an explanation before terminating.
- Courts will not award anticipatory salaries up to retirement age; an aggrieved employee must mitigate losses and move on, and remedies must not be multiplied.
Court orders
#- 1.Declaration that refusal to grant paid study leave was not unfair - declined/dismissed
- 2.Reinstatement declined; Respondent ordered to reopen the offer of re-engagement of the Claimant to a position commensurate with her current qualifications, with 30 days for the Claimant to accept failing which the offer lapses
- 3.General damages of Kshs.648,863 (12 months gross salary based on last gross salary of Kshs.54,072) awarded as compensation for loss of income between termination and reinstatement
- 4.Claimant awarded costs of the case
- 5.Decretal sum to attract interest at court rates until payment in full
- Jurisdiction invoked
- Employment and labour relations jurisdiction under the Industrial Court Act, 2011 (Section 12(3)(vii)) and the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Grace Bosibori Nyamongo v Kenya Institute of Administration [2014] KEELRC 1490 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1490/eng@2014-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.