Grace Achieng Okanga & another v South Nyanza Sugar Company Limited [2016] KEELRC 856 (KLR)

The court found the facts undisputed: the Claimants approved certificates of completed assignments at rates different from the governing contracts, relying on previous certificates without independent confirmation or raising the discrepancy with superiors, which constituted negligence. The unproved element of intent to defraud did not prejudice them since culpability was found on a less serious ground. Their own admissions established valid reason for termination.

The minutes of the ad-hoc committee were not availed, the Claimant admitted not raising objections at the hearing, and the determination was largely based on the KPMG Forensic Report. The court held the Claimant should have applied for production of the minutes if he alleged irregularity, and found no sufficient evidence of hostility or denial of an opportunity to present his case.

The evidence showed the Claimants were not paid withheld salary for the interdiction and suspension period despite the termination letter promising payment of salary earned up to and including 16th August 2010. The court held this was a renege on that promise and that terminated (as opposed to dismissed) employees are entitled to all monies withheld during the disciplinary process.

Adopting the reasoning in Abraham Gumba v Kenya Medical Supplies Authority, the court held that legislative limits on compensatory awards reflect a balance between employers, employees and national socio-economic interests which the court should not extend. Additionally, sections 35 and 49 of the Employment Act provide for termination notice and remedies, and the Claimants had not proved unfair termination in any event.