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ELRCPartially AllowedCause No 793 of 2015· [2016] KEELRC 1042 (KLR)

Fadhil Juma Kisua v Kenya Ports Authority [2016] KEELRC 1042 (KLR)

Employment and Labour Relations Court
24 June 2016
OMO. N. Makau
4,425 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Even when an employee commits fraud, a Kenyan employer must still give a personal hearing before dismissal — otherwise the dismissal is unfair.

What this practically means

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Executive summary

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The Claimant was employed by the Respondent (Kenya Ports Authority) from 2008 as a Cadet Trainee, initially on renewable two-year contracts and from 2014 on permanent and pensionable terms earning Kshs. 108,000 monthly. Following investigations into employee qualifications, the Respondent's Ethics and Integrity Department found anomalies in his academic certificates. A show cause letter dated 28.7.2015 gave him 72 hours to respond to allegations of presenting forged documents; he was summarily dismissed on 6.10.2015 for presenting fake KCSE certificates (Lenana High School and Kapsengere Secondary School) and a fake Kenyatta University degree, and for failing to respond to the show cause letter. The court framed three issues: validity and fairness of the reasons for dismissal, procedural fairness, and reliefs. It found valid and fair reasons: the Lenana High School certificate and university degree were confirmed fake by the respective institutions, and the Claimant must have presented them to secure contract renewal, as reflected in the 2010 renewal memo listing C+ and a BEd degree. The court also found, on a balance of probability, that he never responded to the show cause letter within 72 hours, corroborated by evidence that he deceived a secretary into backdating a receiving stamp. However, the dismissal was procedurally unfair: section 41 of the Employment Act entitles an employee to an automatic personal hearing initiated by the employer, and the 2015 Disciplinary Handbook could not contract out of this statutory right, section 26 making the Act the basic minimum. The dismissal was declared wrongful and unfair. Reinstatement and compensation were refused because the Claimant secured employment through fraud and lacked the degree required for the HM4 managerial grade. He was awarded one month's salary in lieu of notice (Kshs. 108,000), refund of his pension contributions plus accruals, and half costs of the suit plus interest.

Key legal issues

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01

Whether the dismissal was founded on valid and fair reasons

Holding

The reasons were valid and fair - the Claimant presented fake certificates and failed to respond to the show cause letter

Reasoning

The Court found the Lenana High School KCSE certificate and Kenyatta University degree were fake, confirmed by letters from the school and university. The Claimant must have presented them to secure renewal of his contract, since the Personnel Manager's 2010 renewal memo listed qualifications of C+ and a BEd Arts degree. This fraud constituted a criminal offence and a valid reason for dismissal.

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02

Whether a fair procedure was followed

Holding

The procedure was unfair because the Respondent did not invite the Claimant to a disciplinary hearing before dismissing him

Reasoning

Section 41 of the Employment Act entitles an employee to an automatic personal hearing and obliges the employer to make the first move. The 2015 Disciplinary Handbook, requiring a hearing only upon request, conflicted with the statute and could not override it. Section 26 makes the Act's provisions the basic minimum, so the dismissal without a hearing violated sections 41 and 45.

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03

Whether reinstatement or damages should be granted

Holding

Reinstatement and compensation were refused; only salary in lieu of notice and pension refund were awarded

Reasoning

Though dismissal was procedurally unfair, the Claimant contributed to his termination through fraud in securing employment, lacked the university degree required for the HM4 managerial grade, and his serious misconduct disqualified him from discretionary compensation. However, salary in lieu of notice was mandatory as he was dismissed without notice under sections 35 and 36 of the Employment Act.

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Legal principles established

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  • An employee facing dismissal for misconduct is entitled to an automatic personal hearing under section 41 of the Employment Act; a contractual disciplinary handbook cannot contract out of this statutory right
  • Parties cannot execute any contract contrary to an express statutory provision; freedom of contracting must be exercised within legal bounds
  • Reinstatement will be refused where the employee obtained the position through fraud and lacks the requisite qualifications

Court orders

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  1. 1.Declaration that the Claimant's dismissal was wrongful and unfair
  2. 2.Award of Kshs. 108,000 as one month's salary in lieu of notice
  3. 3.Refund of the Claimant's pension contribution plus any accruals earned
  4. 4.Half costs of the Suit plus interest

Authorities

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Legislation

  • Employment Actsections 9, 10, 12, 13(1), 26, 35, 36, 41, 44(3) and (4), 45, 49(1), 49(3), 49(4)
  • Employment and Labour Relations Court Actsection 12
Jurisdiction invoked
Employment and Labour Relations Court Act, section 12; Employment Act

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, "Fadhil Juma Kisua v Kenya Ports Authority [2016] KEELRC 1042 (KLR)", Case Analysis (2016). Cause No 793 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1042/eng@2016-06-24

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