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ELRCPartially AllowedCause No 793 of 2015· [2016] KEELRC 1079 (KLR)

Fadhil Juma Kisua v Kenya Ports Authority [2016] KEELRC 1079 (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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Kenya's Employment Court ruled that even an employee who got the job with fake certificates must still get a fair hearing before dismissal.

What this practically means

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Executive summary

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The Claimant was employed by the Respondent from 2008, initially on two-year renewable contracts and later on permanent and pensionable terms in a management position at Grade HM4. Following an ethics and integrity audit, the Respondent authenticated his academic documents with KNEC, Kapsengere Secondary School, Lenana High School and Kenyatta University, which denied the Lenana KCSE certificate and the Kenyatta University degree. He was dismissed summarily on 6.10.2015 for presenting fake certificates and failing to respond to a show cause letter within 72 hours. The court framed three issues: validity of the reasons, procedural fairness, and reliefs. It found the claimant fraudulently presented fake certificates to secure contract renewal and promotion, constituting a valid and fair reason, and that he never responded to the show cause letter within the required time, having procured a backdated receiving stamp. However, on procedure, the court held that the 2015 Disciplinary Handbook provision conditioning a personal hearing on the employee's request conflicted with section 41 of the Employment Act, and that statute prevails over contract. The dismissal was therefore declared wrongful and unfair. On remedies, reinstatement was refused because the claimant committed fraud and was unqualified (KCSE D+ against a required degree); 12 months' compensation was refused as discretionary and undeserved; full pension was refused but a refund of his own contribution with accruals allowed; future earnings were refused as he was not on a fixed term contract. He was awarded one month's salary in lieu of notice of Kshs. 108,000, refund of pension contributions, half costs and interest.

Key legal issues

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01

Valid and fair reason for dismissal

Holding

Presentation of fake KCSE and degree certificates and failure to respond to the show cause letter constituted valid and fair reasons for summary dismissal

Reasoning

The court found the claimant fraudulently presented fake certificates from Lenana High School and Kenyatta University to secure contract renewal and promotion to the management position of HM4, corroborated by the 2010 internal memo and authentication letters. The offence was criminal in nature and valid grounds for dismissal.

p. 5
02

Procedural fairness

Holding

The dismissal was procedurally unfair because the claimant was not accorded the personal hearing mandated by section 41 of the Employment Act

Reasoning

The court held the 2015 Disciplinary Handbook provision making a personal hearing dependent on the employee's request conflicted with section 41 of the Employment Act and could not be enforced. Statute prevails over private contract. Failure to invite the claimant to a disciplinary hearing rendered the dismissal unfair under sections 41 and 45.

p. 6
03

Remedies despite unfair procedure

Holding

Only notice pay and pension contribution refund were awarded because the claimant's own fraud and disqualification disentitled him to reinstatement, compensation and pension

Reasoning

Although the procedure was unfair, the claimant contributed to his dismissal through misconduct and was unqualified for the position, making reinstatement impracticable and compensation inappropriate as a discretionary relief. Future earnings were refused as he was not on a fixed term contract.

p. 7

Legal principles established

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  • A term of an employment contract that conflicts with an express statutory provision cannot be enforced; section 41 of the Employment Act takes precedence over a disciplinary handbook requiring an employee to request a personal hearing.
  • Section 41 of the Employment Act entitles an employee to an automatic personal hearing before dismissal for misconduct, with the obligation on the employer to invite the employee.

Court orders

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  1. 1.Declaration that the dismissal of the Claimant 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 Actsection 12
  • Employment Actsection 13(1)
  • Employment Actsection 26
  • Employment Actsection 35 and 36
  • Employment Actsection 41
  • Employment Actsection 44(3) and (4)
  • Employment Actsection 45
  • Employment Actsection 49(1), 49(3) and 49(4)
  • Employment and Labour Relations Court Actsection 12
  • KPA Human Resource Manual 2008Appendix A
  • KPA Disciplinary Handbook 2015general
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and the Employment and Labour Relations Court 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 1079 (KLR)", Case Analysis (2016). Cause No 793 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1079/eng@2016-06-24

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