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ELRCDismissedCause No 947 of 2013· [2016] KEELRC 1397 (KLR)

Paul Kigondu Kamande v Kenya Industrial Estates [2016] KEELRC 1397 (KLR)

Employment and Labour Relations Court
15 April 2016
2,054 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Employment Court upheld an employer's dismissal of a long-serving employee, confirming employers win when they show a valid reason and follow fair procedure.

What this practically means

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Executive summary

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The Claimant, formerly employed by Kenya Industrial Estates from 1st November 1996 and last serving as Senior Research Officer, claimed unlawful and unfair termination following his dismissal for gross misconduct on 10th August 2012. The dismissal arose from allegations that, as Malindi Branch Manager, he irregularly facilitated the sale of the Respondent's Plot No 37 to a third party, creating a conflict of interest, failing to protect company property and providing false information to the public. He sought reinstatement, release of a jacketed steel tank, salary in lieu of notice, unpaid leave allowance, loss of income, service pay for 16 years, loss of future earnings and recovery of HELB loan deductions (the latter abandoned at trial). The Respondent maintained the dismissal was justified and lawful, following warnings, suspension and a disciplinary hearing. The Court framed three issues: valid reason, procedural fairness and remedies. Applying Section 43 of the Employment Act and the range of reasonable responses test, the Court found the Respondent had a valid reason, the Claimant's testimony having created doubts and failed to explain his associate's involvement in the plot dispute. Procedural fairness under Section 41 was satisfied through the hearing, written response and disciplinary process. The unlawful termination claim was dismissed, disposing of reinstatement, loss of income and future earnings. The tank claim failed for want of proof of ownership, and service pay was denied because the Claimant was a member of the retirement scheme and NSSF. Only the admitted claims for salary in lieu of notice and leave pay were awarded. Each party was ordered to bear their own costs.

Key legal issues

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01

Valid reason for termination under Section 43 of the Employment Act

Holding

The Respondent had a valid reason for terminating the Claimant's employment

Reasoning

The termination arose from alleged irregular involvement with the Respondent's Malindi Plot No 37. The Claimant could not explain the coincidence of his close friend being caught up in the transaction dispute and his testimony created doubts. On a balance of probability, the Court found the employer had discharged its Section 43 burden.

p. 4
02

Procedural fairness under Section 41 of the Employment Act

Holding

The procedural fairness requirements were satisfied

Reasoning

The Claimant was summoned before the Staff Committee of Management, was shown the complaint letter, was heard, and submitted a written response. Cumulatively, these steps satisfied the Section 41 procedural fairness requirements.

p. 4
03

Remedies

Holding

Only admitted claims for salary in lieu of notice and leave pay were payable; all other claims failed

Reasoning

The dismissal of the substantive claim disposed of reinstatement, loss of income and future earnings. The tank claim failed for want of proof of ownership and service pay was unavailable because the Claimant was a member of a retirement scheme and NSSF. The notice and leave pay claims were admitted and payable.

p. 5

Legal principles established

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  • The burden under Section 43 of the Employment Act is on the employer to demonstrate a valid reason that would cause a reasonable employer to terminate employment
  • The range of reasonable responses test: the court does not substitute its own view for that of the employer but asks whether a reasonable employer could have dismissed on those facts
  • The Court examines the legality and reasonableness of the employer's action rather than re-enacting the internal disciplinary process
  • Employment matters are decided on a balance of probability

Court orders

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  1. 1.Claim for unlawful termination dismissed
  2. 2.Claim for jacketed steel tank and other personal items dismissed
  3. 3.Claim for service pay dismissed
  4. 4.Claims for salary in lieu of notice and leave pay payable to the Claimant
  5. 5.Each party to bear their own costs

Authorities

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Legislation

  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 41
  • Employment Act, 2007Part VI
  • Public Officer Ethics Act, 2003
  • Halsbury's Laws of England (4th Edition Vol 16)page 482

Cases cited (1)

  • Evans Kamadi Misango v Barclays Bank of Kenya Limited
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41 and 43)

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, "Paul Kigondu Kamande v Kenya Industrial Estates [2016] KEELRC 1397 (KLR)", Case Analysis (2016). Cause No 947 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1397/eng@2016-04-15

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