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ELRCDismissedNot stated in the judgment· [2015] KEELRC 1267 (KLR)

Anthony Odhiambo Ogola & another v Kenya School of Government (Formerly Kenya Institute of administration) [2015] KEELRC 1267 (KLR)

Industrial Court (Employment and Labour Relations Court)
11 March 2015
ANAbuodha J. N.
1,571 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi employment court upheld two dismissals linked to a Kshs.18 million audit loss because the employer had valid reasons and followed a fair disciplinary process.

What this practically means

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Executive summary

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Two claimants sued their former employer (referred to in the judgment only as 'the respondent') for what they contended was unfair separation from employment. The 1st claimant, a Senior Accountant on a two-year contract expiring 30th September 2006, and the 2nd claimant, a permanent and pensionable clerical officer, were sent on compulsory leave on 4th September 2006 to allow a special audit into missing cash books and loss of revenue. The 1st claimant's contract was never renewed; the 2nd claimant was suspended without salary and later terminated on account of gross misconduct. Both were questioned by a committee and by police, but no prosecution ever followed. The court found it common ground that financial irregularities existed and that an audit attributed a loss of about Kshs.18 million to improper keeping of books of account, the 2nd claimant's responsibility under the 1st claimant's supervision. Both claimants admitted making or causing the irregular cash book adjustments but offered no contrary evidence or counter professional opinion, leaving the audit report unchallenged. Applying section 44 of the Employment Act, the court held that an employee who carelessly and improperly performs his duty may be summarily dismissed, and that a disciplinary process need not take the rigour of a court trial - following its own decision in Jeremiah Mungai v. Equity Bank Ltd. The committee process satisfied natural justice. The court found valid and justifiable reasons for the terminations and a fair procedure, dismissed both claims with costs on 11th March 2015.

Key legal issues

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01

Justification of the reasons for termination

Holding

There were valid and justifiable reasons: an audit found irregular cash book adjustments responsible for a loss of about Kshs.18 million, and the claimants admitted making or causing the irregular adjustments.

Reasoning

The auditors, as professionals, found the cash book adjustments and cancellations irregular and responsible for the financial loss. The claimants admitted they made or caused the adjustments but offered no evidence or counter professional opinion to rebut the audit findings, leaving the report unchallenged. It did not matter whether they personally benefitted or were prosecuted.

p. 3
02

Fairness of the procedure followed

Holding

The respondent followed a fair procedure: a committee was formed before which the claimants appeared and were questioned, and the relevant audit extracts were made available to them.

Reasoning

The claimants were given the relevant audit report extracts, called upon to respond to the accusations, and appeared before a committee formed to question them about the irregular adjustments. Applying the Employment Act and natural justice, the court held that a disciplinary process need not adopt the rigour of a court trial, and the process here was fair.

p. 3

Legal principles established

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  • The court's concern in a dismissal dispute is the justification and validity of the reasons for dismissal and the fairness of the procedure followed; if satisfied on both, it will not interfere with the termination.
  • A disciplinary process need not take the form and rigour of a court trial; what matters is justifiable reasons and a fair procedure consistent with the Employment Act and natural justice.
  • An employee who carelessly and improperly performs work which it was his duty to perform carefully is liable to summary dismissal under section 44 of the Employment Act.
  • An unchallenged audit report, where the employee fails to offer a counter professional opinion, may found the validity of a dismissal.

Court orders

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  1. 1.The claimants' claims are dismissed with costs
  2. 2.It is so ordered

Authorities

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Legislation

  • Employment ActSection 44

Cases cited (1)

  • Jeremiah Mungai v. Equity Bank Ltd
    Cause No. 165 of 2013
Jurisdiction invoked
Original employment and labour relations jurisdiction (Employment Act; claims of unfair termination of employment)

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, "Anthony Odhiambo Ogola & another v Kenya School of Government (Formerly Kenya Institute of administration) [2015] KEELRC 1267 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1267/eng@2015-03-11

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