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ELRCPartially AllowedCause No. 2203 of 2012· [2015] KEELRC 128 (KLR)

Teddy Mutuku Kisoi v Kenya Wildlife Service [2015] KEELRC 128 (KLR)

Employment and Labour Relations Court of Kenya
1 December 2015
2,740 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled Kenya Wildlife Service unfairly dismissed a ranger, awarding him Kshs. 1 million because vague charges and a rushed hearing denied him a fair defence.

What this practically means

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Executive summary

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The Claimant, employed by Kenya Wildlife Service as a Ranger Grade 13 from 18/12/2001, was dismissed following disciplinary proceedings arising from an incident at Chogoria Gate of Mt. Kenya National Park on 9/12/2005, in which he charged tourists for an extra day's park entry. He was first served with a charge sheet on 13/12/2005, then with a different charge sheet at 7:20 pm on 15/2/2006 for a hearing at 9 am on 16/2/2006, without the first charge sheet being withdrawn. He was found guilty and dismissed with effect from 11/4/2006, and his appeal was confirmed on 6/8/2008 without the appeal decision ever being communicated to him. The Court framed three issues: validity of reasons for dismissal, due process, and remedies. It found the charges vague, the service of a second charge sheet hours before the hearing prejudicial to the Claimant's defence, and both Article 50(2) of the Constitution and Section 41 of the Employment Act offended. The Respondent failed to prove valid reasons under Section 43, and the dismissal was held unfair under Section 45. Although the events occurred in 2006, the Court held the Employment Act 2007 applied because the dismissal was confirmed on 6/8/2008. The Court awarded the Claimant Kshs. 1 million in damages for loss of employment and breach of contract, his terminal dues, costs of the suit, and interest at court rates from the date of judgment. The disciplinary appeals board had itself noted that proceedings were not properly handled and had recommended forensic examination of documents, which the Court took into account.

Key legal issues

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01

Valid reasons for dismissal

Holding

The Respondent did not have valid reasons to dismiss the Claimant; the charges were vague because the Claimant faced two different charge sheets without explanation.

Reasoning

The Court found the charge vague as the Claimant was subjected to two different charge sheets without the presiding officer explaining what offence he had committed. The Respondent also failed to produce the KWS (Armed Wing) Disciplinary Code 1990 under which the charges were framed, so the Court could not compare the charges with the Code. Vague charges and unproved reasons offend Section 43 of the Employment Act, deeming the termination unfair.

p. 4
02

Due process before dismissal

Holding

Due process was flouted; the procedure under Section 41 of the Employment Act was not followed and the Claimant's right to a fair hearing under Article 50(2) of the Constitution was violated.

Reasoning

The Claimant was served with a different charge sheet at 7:20 pm to appear at 9 am the next day, leaving no adequate time to prepare a defence. It was unclear whether the second charge sheet was an amendment or a fresh one, and the first was never withdrawn. The appeals board itself noted proceedings were not properly handled. The Court held these failures offended Article 50(2) of the Constitution and Section 41 of the Employment Act.

p. 5
03

Applicability of the Employment Act 2007

Holding

The Employment Act 2007 applied because the dismissal was confirmed on 6/8/2008, after the Act came into force on 20/12/2007.

Reasoning

Although the events leading to dismissal occurred in 2006, the Respondent was still handling the Claimant's appeal on 6/8/2008 when it confirmed his dismissal. The Court therefore held the Claimant was dismissed during the operation of the Employment Act 2007, allowing reliance on Sections 41, 43 and 45.

p. 4
04

Remedies

Holding

The Claimant was awarded damages of Kshs. 1 million for loss of employment and breach of contract, terminal dues, costs and interest.

Reasoning

Having found the dismissal unfair and unjustified under Section 45(1) and (2) of the Employment Act, the Court awarded general damages of Kshs. 1 million for loss of employment and breach of contract, payment of terminal dues, costs of the suit, and interest at court rates from the date of judgment.

p. 5

Legal principles established

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  • An employer bears the burden of proving valid reasons for termination; failure to do so renders the termination unfair.
  • Serving an employee with a new charge sheet hours before a disciplinary hearing, without clarifying which charge he faces, denies him adequate time to prepare a defence and violates fair hearing rights.

Court orders

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  1. 1.Damages for loss of employment and breach of contract of Kshs. 1 million
  2. 2.Payment of the Claimant's terminal dues
  3. 3.Costs of the suit to the Claimant
  4. 4.Interest on the amount awarded at court rates from the date of the judgment

Authorities

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Legislation

  • Employment Act 2007Section 41
  • Employment Act 2007Section 43
  • Employment Act 2007Section 45(1) and (2)
  • Constitution of Kenya 2010Article 50(2)
  • KWS (Armed Wing) Disciplinary Code 1990Regulation 5 paragraph (n) (cc) and (o); paragraph (bb) (n) (cc)
On appeal from
High Court of Kenya at Nairobi
High Court Civil Case No. 827 of 2007
Jurisdiction invoked
Transferred to the Employment and Labour Relations Court as a matter relating to employment issues (originally filed as High Court Civil Case No. 827 of 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, "Teddy Mutuku Kisoi v Kenya Wildlife Service [2015] KEELRC 128 (KLR)", Case Analysis (2015). Cause No. 2203 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/128/eng@2015-12-01

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