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ELRCPartially AllowedCause No. 1499 of 2013· [2015] KEELRC 1476 (KLR)

David Namu Kariuki v Commission for the Implementation of the Constitution [2015] KEELRC 1476 (KLR)

Employment and Labour Relations Court of Kenya
9 February 2015
3,017 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 confirmed a finance head's dismissal for authorising unauthorised spending, but awarded unpaid leave and a service certificate.

What this practically means

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Executive summary

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The Claimant, Head of Finance and Accounts at the Commission for the Implementation of the Constitution, was summarily dismissed on 6th August 2012 after approving an imprest warrant for Kshs. 420,000 towards a Corporate Social Responsibility activity that had not taken place as scheduled. He claimed the dismissal was unjustifiable and procedurally unfair, seeking a declaration of unlawfulness, reinstatement or, in the alternative, salary for the unexpired contract, gratuity, notice pay, 12 months' compensation and other dues. The Respondent countered that the expenditure was unauthorised, unbudgeted and outside its mandate, and counterclaimed for the Kshs. 420,000. The Court framed five issues. It held that the Claimant's probation had expired on 31st May 2012 and he was confirmed by effluxion of time, so the suit was properly before the Court. Applying Section 43 of the Employment Act, the Court found the Respondent had established a valid reason: the Claimant, as the finance head, could not be a bystander while financial procedures were flouted, having processed an inflated, unauthorised expenditure charged to a nonexistent vote item. On procedure, the Claimant was given notice of disciplinary proceedings, made representations and was heard at a disciplinary meeting, satisfying Section 41. The claim for unlawful dismissal and all consequential prayers was dismissed, but the Court awarded prorata leave for 4 months (Kshs. 53,333) and directed issuance of a certificate of service. The Respondent's counterclaim failed for want of evidence that the Claimant actually received the funds. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the Claimant was still on probation at the time of dismissal

Holding

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

Reasoning

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.

p. 2
02

Whether the Respondent had a valid reason for summary dismissal

Holding

Yes - the Respondent established a valid reason: the Claimant facilitated unauthorised withdrawal of Kshs. 420,000 for a purpose outside the Commission's mandate

Reasoning

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.

p. 5
03

Whether the dismissal procedure was fair

Holding

Yes - the Claimant was given notice, an opportunity to make written representations and to be heard at a disciplinary meeting, satisfying Section 41

Reasoning

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.

p. 5
04

Whether the Respondent's counterclaim for Kshs. 420,000 was established

Holding

The counterclaim failed for want of evidence linking the Claimant to actual receipt of the funds

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The Claimant's claim for unlawful dismissal together with all the prayers made thereunder fails and is dismissed
  2. 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. 3.The Respondent to issue the Claimant with a certificate of service
  4. 4.The Respondent's counterclaim is dismissed
  5. 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

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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, "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.