Tom Mboya Ochieng v Programme For Appropriate Technology In Health Path -Kenya [2016] KEELRC 1435 (KLR)
The bottom line
#A Kenyan court upheld a dismissal for conflict of interest but awarded the employee notice pay and a refund because the employer's handbook lacked summary dismissal provisions.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant's dismissal for conflict of interest was justified
Dismissal was justified; the Claimant failed to prove the handwritten endorsement formed part of his contract and he improperly processed the tender and payments for a company associated with his wife
The court disbelieved the Claimant's claim that the contract was unsigned when he endorsed conditions, noting no employment contract would be valid without signature. Even if endorsed, handwritten endorsements would not bind the Respondent against the printed procurement policy, and the Claimant failed to explain why he handled the tender and payments for Mbombo Enterprises if he had disclosed his interest. The printed document takes precedence over handwritten text.
Whether the Claimant received a fair disciplinary hearing
The Claimant failed to prove the hearing was unfair; minutes showed he was given an opportunity to state his case and he declined the right to be accompanied
The Respondent's witness produced minutes showing the Claimant was given a fair opportunity to state his case. The Claimant was informed of his right to be accompanied by a fellow employee but did not take it up. Having forgone that safeguard, his word stood against the Respondent's witness and the minutes, and under Section 47(5) of the Employment Act he who alleges must prove.
Whether summary dismissal was available under the Respondent's disciplinary framework
The Employee Hand Book made no provision for summary dismissal, so the dismissal was reduced to Involuntary Termination with one month's salary in lieu of notice
The court perused the Respondent's Kenya County Program Employee Hand Book and found it provided for involuntary termination under Section 8000 but contained no provision for summary dismissal. The court therefore converted the summary dismissal into involuntary termination, entitling the Claimant to one month's salary in lieu of notice.
Whether the Claimant was entitled to refund of the surcharged Shs. 79,000/= paid to Mbombo Enterprises
Refund ordered; the Hand Book provided no basis for the surcharge, and entitlement to transportation of household goods had accrued upon reporting for duty
The court found no provision in the Employee Hand Book or justification in law for the surcharge. The Respondent confirmed the Claimant was entitled to transportation of his household goods upon employment and this was in fact done. The flawed tendering process did not disentitle the Claimant to that accrued right.
Legal principles established
#- Under Section 47(5) of the Employment Act, the employee bears the burden of proving unfair termination or wrongful dismissal, while the employer bears the burden of justifying the grounds for termination
- An employee with a conflict of interest should excuse themselves from the procurement decision process
- Where there is a conflict between a handwritten and a printed document, the printed document takes precedence
Court orders
#- 1.The summary dismissal of the Claimant is reduced to Involuntary Termination as provided in the Respondent's Employee Hand Book
- 2.The Claimant is awarded one month's salary in lieu of notice of Shs. 311,039
- 3.Refund to the Claimant of Shs. 79,000/= deducted from his salary
- 4.Each party shall bear its own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over claims of unfair termination and wrongful dismissal
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mogaka v Kenya Power & Lighting Co. Limited (Cause E021 of 2021) [2024] KEELRC 643 (KLR)[2024] KEELRC 643 (KLR)20 Mar 2024
Cite this brief
#Cite this brief
Caselaw, "Tom Mboya Ochieng v Programme For Appropriate Technology In Health Path -Kenya [2016] KEELRC 1435 (KLR)", Case Analysis (2016). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1435/eng@2016-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.