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ELRCPartially AllowedEmployment cause, Nyeri (memorandum of claim filed 17.04.2015)· [2015] KEELRC 104 (KLR)

Michael Gitau Njoroge v Board of Management Afya Yetu Initiative [2015] KEELRC 104 (KLR)

Industrial Court (Employment and Labour Relations Court)
11 December 2015
BOByram Ongaya
2,513 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded an dismissed NGO executive 12 months' pay because his employer fired him without first holding a hearing.

What this practically means

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Executive summary

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The claimant, founder and chief executive/secretary general of the respondent NGO, was suspended on 13.02.2012 amid allegations of fund mismanagement, barred from his office and accounts, and dismissed by letter dated 10.05.2012 following an investigative audit. He sued for wrongful dismissal compensation, lost earnings, reinstatement, costs and interest; the respondent filed a counterclaim seeking dismissal of the claim and judgment of Kshs.541,824 for alleged theft. The court held that although the respondent gave notice setting out the allegations, the prescribed hearing under section 41 of the Employment Act did not occur before termination, and no appeal hearing cured that failure, rendering the termination unfair. Applying section 49(1)(c), the court awarded maximum compensation of twelve months' gross pay (Kshs.1,214,760) plus one month's notice pay (Kshs.91,030), totalling Kshs.1,305,790. Lost-earnings damages were refused because the claimant had gainful alternative engagements and his exculpation in the pending criminal case remained undetermined, engaging the exception to the partial-reinstatement doctrine; reinstatement was also refused owing to the strained relationship created by the pending criminal case. The counterclaim failed: the pleaded theft figure conflicted with the criminal charge, and relying on the court's Del Monte ruling, the court held that employers lack jurisdiction to determine criminal liability. Judgment was entered for the claimant for Kshs.1,305,790 payable by 01.02.2016 with interest on default, the counterclaim was dismissed with costs, and the respondent was ordered to pay the claimant's costs of the suit.

Key legal issues

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01

Fairness of termination

Holding

Termination was unfair because no hearing took place before dismissal as required by section 41

Reasoning

The claimant received the suspension letter with allegations and responded, but the hearing was convened only after the termination letter. Notice alone did not satisfy section 41. No appeal hearing cured the failure, and the respondent conceded as much. The court declined to inquire into the reasons for termination as they were pending before the criminal trial court.

p. 2
02

Compensation for unfair termination

Holding

Maximum 12 months' gross pay awarded (Kshs.1,214,760) plus one month's notice pay (Kshs.91,030)

Reasoning

Section 49(1)(c) permits up to 12 months' gross salary. The court considered the claimant's long service, the unrebutted humiliation by juniors during his forceful ejection, his foundational role in establishing the respondent, and his willingness to continue in employment, finding aggravating circumstances justifying the maximum award.

p. 3
03

Employer's power to determine criminal liability

Holding

Counterclaim for alleged theft failed; employer cannot adjudicate criminal liability

Reasoning

The counterclaimed figure (Kshs.541,824) varied from the criminal charge (Kshs.865,331), and no competent criminal court had convicted the claimant. Relying on the court's ruling in Del Monte, the court held that findings of criminal liability are the exclusive preserve of the trial court vested with criminal jurisdiction.

p. 4

Legal principles established

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  • An employer lacks authority or jurisdiction to make a finding of criminal liability against an employee; only a competent criminal court may do so
  • A hearing before termination is mandatory under section 41 of the Employment Act; notice alone does not satisfy the fair-procedure requirement
  • An employee kept away by unlawful suspension or termination is entitled to at least partial reinstatement and proportionate withheld salary, except where he takes other gainful employment or fails to exculpate himself

Court orders

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  1. 1.The respondent to pay the claimant Kshs.1,305,790.00 by 01.02.2016 failing interest at court rates from the date of judgment till full payment
  2. 2.Dismissal of the respondent's counterclaim with costs
  3. 3.The respondent to pay the claimant's costs of the suit

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 49(1)(c)
  • Employment Actsection 49(4)(f)
  • Employment Actsection 35(1)
  • Employment Actsection 90
  • Constitution of Kenya, 2010Article 50(2)(d)
  • Penal Code Cap 63section 281
  • Criminal Procedure Code Cap 75section 4

Cases cited (2)

  • Kenya Union of Printing, Publishing, Paper Manufacturers and Allied Workers -Versus- Timber Treatment International Limited
    [2013]eKLR, Industrial Cause No. 21 of 2012 at Nakuru
  • David Nyamai and 7 Others -Versus- Del Monte Kenya Limited
    [2015]eKLR, ruling of 4.12.2015
Jurisdiction invoked
Employment Act, 2007 (ss. 35(1), 41, 49(1)(c), 49(4)(f), 90)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Michael Gitau Njoroge v Board of Management Afya Yetu Initiative [2015] KEELRC 104 (KLR)", Case Analysis (2015). Employment cause, Nyeri (memorandum of claim filed 17.04.2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/104/eng@2015-12-11

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