Alex Akoth Ndonga v Kenya Bureau of Standards [2015] KEELRC 884 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether there were valid reasons to terminate the Claimant
No valid reasons were established; the alleged attempted fraud and loss of faith were speculative.
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.
Whether due process was followed before termination
No due process was followed; the Claimant was not given a disciplinary hearing.
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.
What remedies the Claimant is entitled to
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.
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.
Legal principles established
#- 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
#- 1.Declaration that the termination of the Claimant's services was unfair and unjustified
- 2.Payment of one month gross salary in lieu of notice of Kshs.83,852
- 3.Payment of days worked and not paid for of Kshs.41,926
- 4.Payment of pro-rata leave of Kshs.27,951
- 5.Payment of 12 months' salary for unlawful termination (83,852 x 12) of Kshs.1,006,224
- 6.Total award of Kshs.1,159,953 subject to statutory deductions
- 7.Costs of the suit to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act 2007); specific enabling provision not quoted in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.