Solomon Githae Irungu v Nairobi City Water and Sewarage Company Limited [2016] KEELRC 1015 (KLR)
The bottom line
#A Kenyan court awarded a dismissed water company supervisor over Kshs 1.3 million, ruling he was unfairly fired after flagging fraud.
What this practically means
#Executive summary
#Key legal issues
#Limitation - when time began to run
The suit was filed within time because the Managing Director's promise on 25 March 2011 to consider and finalise the second appeal within two months kept the internal process open; time ran from 25 May 2011
The Managing Director acknowledged and responded to the second appeal, promising consideration within two months. The court held the internal disciplinary process could only be said to have concluded after expiry of that promised period, so limitation did not bar the suit filed in December 2013.
Valid reason and fair procedure for summary dismissal
The dismissal was wrongful and unfair under sections 43 and 45 of the Employment Act; the claimant was framed up for challenging a fraud and was never accorded a disciplinary hearing
The respondent's witness was not involved in the matter and could not testify to the truth of the allegations, leaving the claimant's sworn evidence largely uncontroverted. There was no proof of a disciplinary hearing; the claimant was suspended for seven months contrary to the 90-day limit in the Human Resource Manual, and no criminal charges were ever preferred.
Entitlement to relief under section 49
Maximum compensation of 12 months' salary was awarded, together with notice pay, salary arrears, suspension-period salary, service pay under the applicable CBA, leave pay and acting allowance; reinstatement was refused
Under section 49(4) the court weighed the unlawful seven-month suspension without pay, victimisation of the claimant for doing his job properly, failure to pay terminal benefits including notice, the inordinate delay in concluding the disciplinary process, and the claimant's continued loss of employment, justifying the maximum award of 12 months' gross salary.
Legal principles established
#- Where an employer leads a claimant to believe an internal appeal will be considered and finalised within a stated period, limitation time does not run until that promised internal process concludes
- Uncontroverted testimony of a truthful claimant may be accepted where the employer produces no credible counter-evidence, especially where the employer's witness was not privy to the events
- Keeping an employee on suspension beyond the period prescribed by the employer's own Human Resource Manual, and failing to afford a disciplinary hearing, renders a summary dismissal procedurally unfair
Court orders
#- 1.Respondent to pay the Claimant Kshs 1,341,068.88
- 2.The award is payable with interest at court rates from date of filing suit till payment in full
- 3.The Respondent to pay costs of the suit
- 4.Refusal of reinstatement as it is beyond the three-year limit under section 12(3)(vii)
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act, section 12 (including section 12(3)(vii) on reinstatement), in respect of wrongful and unfair summary dismissal under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Solomon Githae Irungu v Nairobi City Water and Sewarage Company Limited [2016] KEELRC 1015 (KLR)", Case Analysis (2016). Cause No. 1931 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1015/eng@2016-06-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.