Daniel Kosgei v Kerio Valley Development Authority [2016] KEELRC 394 (KLR)
The bottom line
#A Kenyan court upheld a dismissal for absenteeism but ordered the employer to pay wages it withheld during the employee's suspension without authority.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the summary dismissal
The dismissal procedure was fair: the Claimant was given a show cause notice with 14 days to respond (he responded in about 7 days without complaining), summons to the Disciplinary Committee was served on and acknowledged by his advocates, 7 days' notice of the hearing was sufficient as he knew the allegations since July 2013, the charges were adequately particularised, and the Disciplinary Committee was validly constituted with jurisdiction over a KV 8 employee. No prejudice was demonstrated.
The Court examined each procedural complaint: adequacy of time to show cause, service of summons, adequacy of charges and jurisdiction of the Disciplinary Committee. It found the Claimant's advocates acknowledged service and objected on jurisdictional grounds, that he never alleged insufficiency of time in his response, that particulars were adequate, and that in the absence of evidence to the contrary the Committee was validly appointed by the Managing Director under section 10.3.2. Under section 10.2.2 the Managing Director could dismiss a KV 9-and-below employee without Board reference.
Substantive fairness of the summary dismissal
The Respondent proved that the Claimant was absent from duty without permission or lawful cause, which was a valid and fair reason for dismissal. The Claimant's explanation of domestic issues and lack of accommodation/transport allowance after his 10 days off did not excuse him, and as a not-too-junior employee he should have sought more time or explained himself without waiting for a show cause notice.
The Court found the reasons given (absence without lawful cause and declining to appear before the Disciplinary Committee) were grounded in the Terms and Conditions of Service and the Employment Act, 2007. The Claimant's response explained only his failure to resume after the 10 days off; there was no explanation why he did not seek more time. His seniority meant more was expected of him.
Unpaid wages during suspension
The Claimant is entitled to wages up to the date of dismissal. Withholding wages during suspension is unlawful absent statutory or contractual authority; the suspension letter did not suggest financial loss as required by section 10.2.4 of the Terms and Conditions of Service. Since the amounts were not computed and proved, the Respondent was ordered to compute and pay them.
The Court distinguished suspension on half or no salary under section 10.2.4, which requires an opinion that financial loss may be involved. No such indication existed. It regretted that the Claimant attempted to introduce computations through submissions rather than laying a proper evidentiary basis through contractual documents, pay slips or proof of unpaid salaries.
Transfer legality raised in the proceedings
The question of the legality of the mass transfers belongs to the High Court in Eldoret where a petition (Eldoret High Court Petition No. 16 of 2013) was pending, and the Claimant, having not made an election as to how to proceed, could not sneak the transfer question into these proceedings.
The Court noted it was bothered that the Claimant attempted to introduce the transfer question in these proceedings while similar questions were pending litigation before the High Court without making an election. The mass transfers unsettled many employees and the Claimant may have been misadvised, but the proper forum for the transfer challenge was the High Court.
Legal principles established
#- Without a statutory or contractual authority, withholding of wages during suspension is unlawful
- Adequacy of notice/charges in disciplinary process is assessed by whether the employee was put on notice and suffered no prejudice
Court orders
#- 1.Claimant directed to be issued a Certificate of Service within 14 days
- 2.Respondent ordered to compute and pay the Claimant unpaid wages up to 18 September 2013
- 3.Cause dismissed save for the unpaid wages during suspension
- 4.No order as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Employment and Labour Relations Court (Procedure) Rules, 2010 (rule 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Kosgei v Kerio Valley Development Authority [2016] KEELRC 394 (KLR)", Case Analysis (2016). Cause (Nakuru) filed 28 October 2013; related: Nakuru Cause No. 368 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/394/eng@2016-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.