Naftaly Kiogora v Meru Central Dairy Co-operative Union Limited (Cause 51 of 2016) [2016] KEELRC 223 (KLR)
The bottom line
#A Kenyan court ruled a two-year suspension without pay or hearing was illegal, ordering the employer to pay full wages and reinstate the worker.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was terminated on 19.01.2015
The court found no termination occurred; the claimant remained on suspension.
There was no evidence the claimant received the invitation to the disciplinary hearing of 08.01.2015, no minutes of the alleged board meeting, and no proof of delivery of the termination letter. The respondent's advocates' letter of 31.10.2015 describing the claimant as having terminated his own employment was an inconsistency counsel could not cure. The human resource manager was not called to testify. The respondent failed to discharge its evidential burden under section 43 of the Employment Act.
Whether the suspension should be declared null
Yes; the suspension was unreasonable and founded on bad faith, amounting to an unfair labour practice under Article 41(1).
The promises in the suspension letter — half pay and a disciplinary hearing — were never honoured. The suspension persisted for about 24 months, during which the respondent neither paid the half salary nor convened the promised hearing. Such conduct, marked by bad faith, violated the claimant's right to fair labour practices and warranted nullification of the suspension.
Remedies: pay for suspension period and reinstatement
Claimant entitled to full salary for the 24-month suspension (Kshs.622,800.00) and unconditional reinstatement effective 29.12.2014.
The nullified suspension leaves no bar to the prayers. Following the court's own prior decision in the Timber Treatment case, an employee unlawfully suspended carries a legitimate expectation to return to work and is entitled to withheld salaries for the period, unless he took other employment or failed to exculpate himself. The claimant survived on subsistence farming and lost income, with no opportunity to mitigate.
Legal principles established
#- An employer bears the evidential burden to establish genuine reasons for termination under section 43 of the Employment Act, 2007.
- A letter or piece of evidence in proceedings is not a pleading amenable to amendment under the slip rule.
- A suspension blended with bad faith, prolonged and whose terms (half pay and disciplinary hearing) are not honoured amounts to an unfair labour practice contrary to Article 41(1) of the Constitution.
- An employee unlawfully suspended is entitled to salaries for the suspension period and reinstatement, unless he took other gainful employment or failed to exculpate himself.
Court orders
#- 1.Declaration that the claimant's suspension from employment by the respondent's letter dated 29.12.2014 is null
- 2.Respondent to pay the claimant full salary for the period of suspension being 24 months times the last basic pay of Kshs.25,950.00, totalling Kshs.622,800.00, payable by 15.01.2017 failing interest at court rates till full payment
- 3.Claimant reinstated in the respondent's employment without a break in service with effect from 29.12.2014, to report to the human resource manager not later than 03.01.2017 at 8.00 a.m.
- 4.Respondent to pay claimant's costs of the suit fixed at Kshs.35,000.00 payable by 15.01.2017 failing interest at court rates till full payment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007; Article 41(1) of the Constitution engaged)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Naftaly Kiogora v Meru Central Dairy Co-operative Union Limited (Cause 51 of 2016) [2016] KEELRC 223 (KLR)", Case Analysis (2016). Employment Cause (memorandum of claim filed 15.03.2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/223/eng@2016-12-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.