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ELRCPartially AllowedCause No. 793 of 2014· [2016] KEELRC 28 (KLR)

Hamphrey Kusesi Nashombe v Kenya Revenue Authority [2016] KEELRC 28 (KLR)

Employment and Labour Relations Court of Kenya
25 November 2016
MMM. Mbaru
5,633 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld KRA's dismissal of an employee for misconduct but ruled employers must still pay salaries and dues owed during suspension.

What this practically means

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Executive summary

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The Claimant, employed by Kenya Revenue Authority in 1979 as a Prevention Officer and rising to Revenue Officer III, was interdicted on 12th July 2010 and summarily dismissed in June 2011 following allegations that he conspired to dump export consignments of cigarettes destined for Juba, South Sudan into the local market, that he falsified verification and sighting accounts for two trucks at Malaba border, and that he entered a verification account into the Simba system using a colleague's profile. He claimed unpaid salaries during suspension, notice pay, leave pay, pension benefits, conversion of the dismissal to retirement, and 12 months' compensation, contending the dismissal was unfair, unlawful and malicious. The Respondent maintained the dismissal was justified, procedural, and based on investigations showing the trucks never crossed into Uganda. The court applied sections 41, 43, 45 and 47(5) of the Employment Act, holding that although the Respondent failed to consider systemic factors at the porous Malaba border, the proved misconduct of using a colleague's Simba profile and concealing it, established on a balance of probabilities, justified dismissal and due process was lawful. However, the policy of withholding dues during suspension was an unfair labour practice. Judgment was entered for the Claimant for Kshs.1,044,000.00 being salaries during suspension, Kshs.119,118.00 leave pay, pension computed on the basis of termination rather than summary dismissal or retirement, and 50% of costs. Compensation, notice pay and retirement-based remedies were refused.

Key legal issues

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01

Whether the grounds for dismissal were justified

Holding

The charge of using a colleague's Simba system profile and concealing the fact was proved on a balance of probabilities and justified dismissal

Reasoning

The Claimant admitted using a colleague's profile, only corrected the error after the colleague complained, and his explanation shifting blame to workload and network interruptions was a mere shifting of responsibility. Concealment of material facts warranted sanction even if other charges were not adequately proved at the disciplinary hearing.

p. 8
02

Whether the disciplinary process was fair

Holding

Due process was lawful in arriving at the sanction, though the Respondent failed to take into account factors such as the porous border at Malaba

Reasoning

The Claimant was issued a show cause notice, responded in writing, and attended a disciplinary hearing where he gave his defence. The court noted the Respondent failed to consider systemic problems at the Malaba border, but even so, the proved misconduct independently justified the sanction of summary dismissal.

p. 9
03

Whether salaries during suspension were payable

Holding

Yes; the Claimant remained an employee until termination and the policy of withholding suspension dues was an unfair labour practice

Reasoning

The Claimant was on suspension from July 2010 to June 2011 and remained the Respondent's employee until termination. The Code of Conduct clause 7.9 denying an employee on suspension his dues was held to be an unfair labour practice, so the unpaid dues during suspension were owing to the Claimant.

p. 9
04

Whether pension and retirement-based remedies were available

Holding

Pension payable on the basis of termination, not retirement or summary dismissal

Reasoning

The court held that an employee who fails to undertake duties diligently is subject to termination and not retirement. Pension dues were to be computed on the basis of a termination in accordance with the applicable pension regulations and section 35 of the Employment Act, and not on the basis of normal retirement.

p. 9

Legal principles established

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  • The burden of proving unfair termination or wrongful dismissal rests on the employee, while the burden of justifying the grounds rests on the employer (section 47(5), Employment Act)
  • The standard of proof in disciplinary matters is on a balance of probabilities, not beyond reasonable doubt
  • A policy of withholding an employee's dues during suspension amounts to an unfair labour practice

Court orders

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  1. 1.Salary due during the suspension period July 2010 to June 2011 awarded at Kshs.1,044,000.00
  2. 2.Leave due awarded at Kshs.119,118.00
  3. 3.Pension due to be paid in accordance with terms of a termination upon the Claimant's compliance with set regulations for the management of such pension
  4. 4.Claimant awarded 50% of his costs

Authorities

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Legislation

  • Employment Actsection 47(5)
  • Employment Actsection 35(1)
  • Employment Actsection 41 and 41(2)
  • Employment Actsection 43
  • Employment Actsection 45(2)(a) and (b)
  • Employment Actsection 28
  • Employment Actsection 35
  • KRA Code of Conductsection 7.9 / clause 7.9

Cases cited (3)

  • KRA versus Menginya Salim Murgani
  • George Onyango Akuti versus G4S Security Services Kenya Ltd
    [2013] eKLR
  • Ismail Hassan Abdullahi versus Kenya Ports Authority
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; ELRC)

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, "Hamphrey Kusesi Nashombe v Kenya Revenue Authority [2016] KEELRC 28 (KLR)", Case Analysis (2016). Cause No. 793 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/28/eng@2016-11-25

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