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ELRCPartially AllowedNakuru Cause (stated in judgment as commenced 28 October 2013; related matter Nakuru Cause No. 368 of 2013)· [2016] KEELRC 396 (KLR)

Sammy Mwitiki v Kerio Valley Development Authority [2016] KEELRC 396 (KLR)

Employment and Labour Relations Court
12 July 2016
2,045 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, an employee of Kerio Valley Development Authority in Job Group KV 7, sued over his summary dismissal dated 18 September 2013 following a mass transfer in April 2013 to Wei Wei Station. He was issued a show cause letter on 27 June 2013 for absence from duty for over 14 days without leave or lawful cause and failing to hand over; his salary was stopped from that date. He did not appear before the Disciplinary Committee on 19 August 2013, his advocates having objected to its jurisdiction and having filed Eldoret High Court Petition No. 16 of 2013 challenging the transfers and disciplinary process. The parties agreed the Cause be determined on the record and submissions under rule 21 of the ELRC (Procedure) Rules, 2010, with reference to evidence in a related matter. The Court held the dismissal was procedurally fair: the charges were clearly stated, sufficient time to respond was given, and the Claimant was served with summons; the Disciplinary Committee was validly constituted with jurisdiction over him. Substantively, his absence without permission or lawful cause was a valid and fair reason for dismissal. The transfer/malice question was held to belong before the High Court where it was pending, and malice required evidence not led. Reinstatement, a declaration of unlawful dismissal and general damages were refused. However, the Court held that withholding wages during suspension without statutory or contractual authority is unlawful, and awarded wages from 27 June 2013 to 18 September 2013, to be computed and paid by the Respondent, and directed issuance of a certificate of service within 14 days. Save for that head, the Cause was dismissed with no order as to costs. Delivered at Nakuru on 12 July 2016 by Radido Stephen, Judge.

Key legal issues

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01

Procedural fairness of the disciplinary process

Holding

The dismissal was procedurally fair: the charges were clearly stated, the Claimant had 7 days to respond, and he was served with summons to the oral hearing

Reasoning

The show cause letter of 27 June 2013 set out the allegations with sufficient clarity and gave 7 days to respond, which the Claimant did. The summons of 12 August 2013 for the hearing on 19 August 2013 was served, as evidenced by the advocate's response of 16 August 2013 and the filing of a High Court petition on 20 August 2013. The Claimant's failure to attend was of his own making and no prejudice was demonstrated.

p. 3
02

Jurisdiction of the Disciplinary Committee

Holding

The Disciplinary Committee was validly constituted and had jurisdiction over the Claimant given his Job Group KV 7

Reasoning

Although the Code of Regulations contains an apparent contradiction between the Advisory Committee (section 10.1.1) and the Disciplinary Committee (section 10.3.2), the Court resolved it by holding the Advisory Committee advises on policy while the Disciplinary Committee handles actual disciplinary cases. The Claimant, in Job Group KV 7, fell under the Disciplinary Committee's jurisdiction, and under section 10.2.2 dismissal of employees in KV 9 and below was within the Managing Director's power without reference to the Board.

p. 3
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Substantive fairness of the dismissal

Holding

The Claimant was absent without permission or lawful cause, which was a valid and fair reason for dismissal

Reasoning

The Claimant explained his absence as addressing family issues and failure to secure accommodation at the new station, but gave no explanation why he did not seek more time or inform the Respondent before the show cause notice. As a not too junior employee, more was expected of him. Absence without lawful cause was thus a valid and fair reason to dismiss.

p. 4
04

Unpaid wages during suspension

Holding

The Claimant is entitled to wages from 27 June 2013 (when his salary was stopped) up to the date of dismissal

Reasoning

Withholding wages during suspension is unlawful absent statutory or contractual authority. The Respondent's letter stopping the Claimant's remuneration did not suggest any financial loss, and the extract of the Terms and Conditions of Service did not show authority to stop an employee's salary entirely. The entitlement runs from 27 June 2013 to 18 September 2013.

p. 5

Legal principles established

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  • An employer who informs an employee of the charges with sufficient clarity and affords an opportunity to make representations satisfies section 41 of the Employment Act, 2007
  • Without a statutory or contractual authority, withholding of wages during suspension is unlawful
  • A certificate of service is a statutory right of an employee

Court orders

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  1. 1.The Court finds and holds that the summary dismissal of the Claimant was fair
  2. 2.The Claimant is entitled to unpaid wages from 27 June 2013 up to the date of dismissal (18 September 2013)
  3. 3.The Respondent is ordered to compute and pay the Claimant the unpaid wages
  4. 4.The Respondent is directed to issue a Certificate of Service to the Claimant within 14 days
  5. 5.Save for the unpaid wages during suspension, the Cause is dismissed with no order as to costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007; determination on the record pursuant to rule 21 of the Employment and Labour Relations Court (Procedure) Rules, 2010

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, "Sammy Mwitiki v Kerio Valley Development Authority [2016] KEELRC 396 (KLR)", Case Analysis (2016). Nakuru Cause (stated in judgment as commenced 28 October 2013; related matter Nakuru Cause No. 368 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/396/eng@2016-07-12

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