Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedIndustrial Cause (claimant's claim; related causes cited: No. 606 of 2009 and No. 312 of 2010)· [2016] KEELRC 165 (KLR)

Ken Aluoch v Postal Corporation of Kenya Ltd [2016] KEELRC 165 (KLR)

Industrial Court of Kenya
9 December 2016
MNMathews Nderi Nduma
2,225 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Kenya's Industrial Court ruled Postal Corporation unfairly sacked a general manager, awarding him over Kshs.8.6 million because the disciplinary hearing was a sham.

What this practically means

#

Executive summary

#
The claimant, formerly General Manager, Customer Service of Postal Corporation of Kenya, was dismissed for gross misconduct on 22nd July 2009 over alleged breach of procurement procedure and failure to undertake due diligence on Afripayment (K) Ltd in the Posta Pay project. He sought a declaration that the dismissal was unfair, twelve months' compensation, gratuity, notice pay and damages. The respondent admitted the employment particulars and maintained that the claimant was heard by the Human Resource Committee of the Board. The court framed two issues: whether the dismissal was for a valid reason and fair procedure, and whether the claimant was entitled to the reliefs sought. On the first, it found no bidder appealed the procurement, the Posta Pay system was profitable, fraud was committed by others not the claimant, and the claimant was not a member of the due diligence team; no valid reason or gross misconduct was established. It further found the hearing a sham, the claimant having been prevented from making oral representations. The dismissal was declared unlawful and unfair contrary to section 45(1) and (2) of the Employment Act, 2007. On remedies, the court declined multiple damages for the same breach but awarded ten months' salary as compensation under section 49(1)(c) as read with 49(4) (Kshs.4,000,000), three months' notice pay (Kshs.1,200,000) and gratuity for 34 months and 22 days (Kshs.3,473,333), plus interest and costs, following the awards in Andrew Tanui and Fred Odhiambo where comparably dismissed managers received gratuity.

Key legal issues

#
01

Validity of the reasons for dismissal

Holding

No valid reason or gross misconduct was established; the claimant was not part of the due diligence team and no evidence showed he breached procurement procedure

Reasoning

The court found no bidder appealed the procurement; the Posta Pay system was profitable; known individuals other than the claimant engaged in fraud; the claimant was never part of the due diligence team. On a balance of probability, the charges were invalid and no gross misconduct was established.

p. 4
02

Fairness of the disciplinary procedure

Holding

The procedure was unfair; the claimant was prevented from making his defence and was only asked if he had anything to add

Reasoning

The Human Resource Manual required a hearing before the disciplinary committee. The minutes showed the claimant was not allowed to present his defence and the session lasted less than five minutes. A mere semblance of a hearing does not satisfy the requirement of a fair hearing.

p. 4
03

Remedies for unfair termination

Holding

Compensation under section 49(1)(c) as read with 49(4), notice pay and accrued gratuity awarded; multiple/common-law damages refused

Reasoning

Having found the dismissal unlawful contrary to section 45, the court awarded ten months' salary as compensation (following the Fred Odhiambo award), three months' notice pay per the contract, and gratuity for the served term of 34 months and 22 days, noting the claimant was discriminated against by not being paid gratuity like his subordinate.

p. 4

Legal principles established

#
  • A dismissal must be for a valid reason and following a fair procedure; a mere semblance of a hearing does not suffice
  • An employee cannot recover multiple remedies for the same breach of employment

Court orders

#
  1. 1.Kshs.4,000,000 compensation equivalent to ten (10) months salary
  2. 2.Kshs.1,200,000 in lieu of three months notice
  3. 3.Kshs.3,473,333 gratuity for the served term of the contract at 25%
  4. 4.Total award Kshs.8,673,333
  5. 5.Interest at court rates from date of filing suit till payment in full in respect of (b) & (c) above and from date of Judgment with respect to (a) above
  6. 6.Costs of the suit

Authorities

#

Legislation

  • Employment Actsection 45(1) and (2)
  • Employment Actsection 49(1)(c) as read with 49(4)
  • Exchequer and Audit (Public Procurement) Regulationsections 41 and 42

Cases cited (2)

  • Andrew Tanui –vs- Postal Corporation of Kenya
    Industrial Court Cause number 600 of 2009
  • Fred Odhiambo –vs- Postal Corporation of Kenya
    Industrial Cause number 312 of 2010
Jurisdiction invoked
Employment and labour relations dispute under the Employment Act, 2007 (sections 45 and 49)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Ken Aluoch v Postal Corporation of Kenya Ltd [2016] KEELRC 165 (KLR)", Case Analysis (2016). Industrial Cause (claimant's claim; related causes cited: No. 606 of 2009 and No. 312 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/165/eng@2016-12-09

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