David Namu Kariuki v Commission for the Implementation of the Constitution [2015] KEELRC 1476 (KLR)
The bottom line
#Kenya's Employment Court confirmed a finance head's dismissal for authorising unauthorised spending, but awarded unpaid leave and a service certificate.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was still on probation at the time of dismissal
The probationary period expired on 31st May 2012 and the Claimant was deemed confirmed by effluxion of time; the claim was properly before the Court
The letter of appointment provided a three-month probation from 1st March 2012, expiring 31st May 2012. The dismissal on 6th August 2012 came after expiry. An employer wishing to extend probation must formally do so under Section 42(2); silence results in confirmation by effluxion of time, so Sections 42(1) and 47(6) did not bar the claim.
Whether the Respondent had a valid reason for summary dismissal
Yes - the Respondent established a valid reason: the Claimant facilitated unauthorised withdrawal of Kshs. 420,000 for a purpose outside the Commission's mandate
Section 43 places the burden on the employer to prove genuine reasons for termination. The dismissal letter detailed the Claimant's facilitation of an unauthorised expenditure, charging it to a nonexistent vote item and ignoring the AIE holder's request to stop. As Head of Finance and Accounts he could not be a bystander while financial procedures were flouted, and an inflated budget was approved.
Whether the dismissal procedure was fair
Yes - the Claimant was given notice, an opportunity to make written representations and to be heard at a disciplinary meeting, satisfying Section 41
The Claimant was interdicted and required to respond within seven days, made representations, and was heard at a disciplinary meeting on 30th July 2012. Following the Brolaz decision, prior notice of disciplinary proceedings satisfies Section 41. No evidence of procedural unfairness was found.
Whether the Respondent's counterclaim for Kshs. 420,000 was established
The counterclaim failed for want of evidence linking the Claimant to actual receipt of the funds
Although the Respondent pleaded that the Claimant unlawfully approved the expenditure, no evidence was led to show that the Claimant actually received the funds in issue, so the counterclaim could not succeed.
Legal principles established
#- Once a probationary period lapses without any word from the employer, the employee is deemed confirmed by effluxion of time
- The employer bears the burden under Section 43 of the Employment Act to establish a valid reason that would move a reasonable employer to terminate employment
- Where an employee is subjected to disciplinary proceedings of which the employee has prior notice, the requirements of Section 41 are satisfied
Court orders
#- 1.The Claimant's claim for unlawful dismissal together with all the prayers made thereunder fails and is dismissed
- 2.The Respondent to release to the Claimant prorata leave for 4 months at 1.75 days per month, totalling Kshs. 53,333, within 30 days from the date of the award
- 3.The Respondent to issue the Claimant with a certificate of service
- 4.The Respondent's counterclaim is dismissed
- 5.Each party to bear their own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair termination of employment claims under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Namu Kariuki v Commission for the Implementation of the Constitution [2015] KEELRC 1476 (KLR)", Case Analysis (2015). Cause No. 1499 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1476/eng@2015-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.