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ELRCAllowedCause No. 935 of 2012· [2015] KEELRC 884 (KLR)

Alex Akoth Ndonga v Kenya Bureau of Standards [2015] KEELRC 884 (KLR)

Employment and Labour Relations Court
11 June 2015
1,388 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded an auditor KShs 1.16 million after KEBS fired him without proof of misconduct or a fair hearing.

What this practically means

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Executive summary

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The Claimant, formerly an Accountant III and later Acting Internal Auditor at the Kenya Bureau of Standards, was interdicted on 2nd May 2007 over an alleged attempted fraud of about Kshs.33,860,000, on half salary. He was never charged or convicted, and after nearly two years on interdiction wrote to the Board seeking his fate; on 15th April 2009 his services were terminated on grounds of loss of faith, effective 1st April 2009. He claimed unfair termination. The Respondent alleged lawful termination and pleaded that dues were paid, and further argued that the claim was res judicata following dismissal of High Court Petition No. 23 of 2010. The court framed three issues: validity of reasons, procedural fairness, and remedies. Applying Sections 43, 45(2) and 41 of the Employment Act 2007, it held that the employer bore the burden of proving the reason for termination and had failed: the fraud allegation was purely speculative, the Claimant was never arrested, charged or convicted, and the outcome of the Banking Fraud investigations was never disclosed. On process, the Claimant was given no disciplinary hearing and was condemned unheard. The court declared the termination unfair and unjustified and awarded one month's salary in lieu of notice, unpaid days worked, pro-rata leave and 12 months' gross salary as compensation, totaling Kshs.1,159,953 subject to statutory deductions, plus costs of the suit. Judgment was read in open court on 11th June 2015.

Key legal issues

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01

Whether there were valid reasons to terminate the Claimant

Holding

No valid reasons were established; the alleged attempted fraud and loss of faith were speculative.

Reasoning

The Claimant was interdicted over an alleged attempted theft of Kshs.33,860,000 while Acting Internal Auditor. The court found no evidence that money was lost or stolen through the Claimant's fault. Investigations by the Banking Fraud Unit produced nothing shown to the court, the Claimant was never arrested, charged or convicted, and his interdiction lasted nearly two years until termination shortly after he enquired about his fate. Section 43 places the burden of proving reasons on the employer.

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02

Whether due process was followed before termination

Holding

No due process was followed; the Claimant was not given a disciplinary hearing.

Reasoning

Section 41 of the Employment Act 2007 requires an employer, before terminating on grounds of misconduct, to explain the reasons to the employee and to hear and consider representations. The Claimant was subjected to no such hearing. He was denied the right to be heard and condemned unheard, breaching both the statute and elementary fairness. The termination followed his appeal to the board questioning his fate after two years on interdiction.

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What remedies the Claimant is entitled to

Holding

Compensation comprising one month's salary in lieu of notice, unpaid days worked, pro-rata leave and 12 months' salary for unlawful termination, plus costs.

Reasoning

Having declared the termination unfair and unjustified, the court awarded notice pay, unpaid days, pro-rata leave and the maximum 12 months' gross salary as compensation for unlawful termination under the Employment Act, computed on gross pay of Kshs.83,852, subject to statutory deductions, together with costs of the suit. The res judicata objection raised by the Respondent on the basis of High Court Petition No. 23 of 2010 was not resolved in the judgment.

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Legal principles established

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  • Under Section 43 of the Employment Act 2007, the employer bears the burden of proving the reason or reasons for termination, failing which the termination is deemed unfair.
  • Termination without a disciplinary hearing as contemplated by Section 41 of the Employment Act 2007 violates the employee's right to be heard and renders the termination unfair.

Court orders

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  1. 1.Declaration that the termination of the Claimant's services was unfair and unjustified
  2. 2.Payment of one month gross salary in lieu of notice of Kshs.83,852
  3. 3.Payment of days worked and not paid for of Kshs.41,926
  4. 4.Payment of pro-rata leave of Kshs.27,951
  5. 5.Payment of 12 months' salary for unlawful termination (83,852 x 12) of Kshs.1,006,224
  6. 6.Total award of Kshs.1,159,953 subject to statutory deductions
  7. 7.Costs of the suit to the Claimant

Authorities

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Legislation

  • Employment ActSection 43
  • Employment ActSection 45(2)
  • Employment ActSection 41(1) and (2)
  • Employment Act (Chapter 226, former)Clause 17(c) and (g)
  • Kenya Bureau of Standards Staff RegulationSection 10, Clause 82(b), (d), (e), (k) and (i)
  • Human Resource Policy Manual 2008loss of faith provision
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act 2007); specific enabling provision not quoted in the judgment

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, "Alex Akoth Ndonga v Kenya Bureau of Standards [2015] KEELRC 884 (KLR)", Case Analysis (2015). Cause No. 935 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/884/eng@2015-06-11

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