Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedCause No. 1 of 2015· [2016] KEELRC 1645 (KLR)

Kenya Union of Commercial,Food and Allied Workers v Water Resource Management Authority & another [2016] KEELRC 1645 (KLR)

Employment and Labour Relations Court of Kenya
24 February 2016
4,632 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The Kenya Union of Commercial, Food and Allied Workers claimed on behalf of its grievant, Irene Chepkemoi Chesiror, formerly Accounts and Administrative Assistant at the Water Resource Management Authority (WRMA), that her dismissal was unprocedural, unfair and unlawful, contrary to Section 41 of the Employment Act, 2007 and Articles 41, 50 and 28 of the Constitution. It sought a declaration of unfairness, unconditional reinstatement with accrued benefits, and in the alternative monetary reliefs totalling Kshs.2,429,933. WRMA denied the claim, asserting that the grievant delayed banking, made unauthorised payments of Kshs.39,397, failed to attend a properly noticed meeting at the Regional Office in Kisumu, and refused to report to the National Office after transfer, amounting to abscondment and insubordination. WRMA also counterclaimed for Kshs.39,397 with costs and interest. The Attorney General appeared as interested party. After hearing the grievant and six respondent witnesses, the court framed four issues and found the termination lawful: the grievant had notice of the Kisumu meeting, was insubordinate in refusing the transfer, and admitted unauthorised payments constituting gross misconduct. The reliefs consequently dissipated. The counter-claim was dismissed because liability was not unequivocally admitted and termination was deemed adequate punishment. The claim was dismissed with no order as to costs, each party bearing their own costs.

Key legal issues

#
01

Whether the termination of the grievant's employment was wrongful, unfair and unlawful

Holding

The termination was lawful. The grievant failed to attend the Kisumu meeting despite notice, refused to report to the National Office on transfer, and admitted making unauthorised payments, all amounting to gross misconduct and insubordination.

Reasoning

The court anchored the determination on four aspects: the Kisumu meeting of 7th January 2009, the grievant's conduct on transfer to the national office, the show cause letter and response, and the letter of termination. Three respondent witnesses corroborated that the grievant knew of the Kisumu meeting. Her own reply to the show cause letter showed she did not honour the transfer because she wanted her complaints resolved first. She admitted paying Kshs.39,397 without authority. The claim that she was asked for a release letter was treated as an afterthought.

p. 9
02

Whether the respondent was entitled to its counter-claim of Kshs.39,397

Holding

The counter-claim was dismissed. Liability was not unequivocally admitted, and termination was adequate punishment.

Reasoning

The court noted the grievant never unequivocally admitted liability for the amount claimed. Given that she had already suffered termination of employment, ordering repayment would be counter-productive and against good labour relations practice. The claimant's own reliefs dissipated with the adverse finding on the lawfulness of termination, and the court moved directly to the counter-claim issue.

p. 10
03

Whether the claimant was entitled to the reliefs sought

Holding

The reliefs dissipated with the adverse finding on the lawfulness of the termination; the claim was dismissed in its entirety.

Reasoning

Since the court found the termination lawful, the declaration, reinstatement and alternative monetary reliefs all fell away. The claimant's contention that the grievant was asked for a release letter when reporting to Nairobi was not contradicted by the respondent's witnesses, but the court nonetheless found on the totality of the evidence, including the grievant's own show-cause response, that she absconded and was insubordinate.

p. 9

Legal principles established

#
  • An employee who fails to honour a lawful transfer and does not attend a properly convened meeting at which she had notice is guilty of insubordination and abscondment justifying termination.
  • Payment of funds without authority, even where not admitted as misappropriation, constitutes gross misconduct under the employer's code of regulations warranting summary dismissal.

Court orders

#
  1. 1.Dismissal of the claimant's claim
  2. 2.Dismissal of the respondent's counter-claim
  3. 3.Each party to bear their own costs of the claim

Authorities

#

Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 42(1)
  • Employment Act, 2007Section 44(3) and (4)
  • Employment Act, 2007Section 47
  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 28
  • Public Service Code of RegulationsSection R, regulation 26
  • Respondent's Human Resource Policy ManualSection 10.17.1
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair/unlawful dismissal claim under the Employment Act, 2007

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya Union of Commercial,Food and Allied Workers v Water Resource Management Authority & another [2016] KEELRC 1645 (KLR)", Case Analysis (2016). Cause No. 1 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1645/eng@2016-02-24

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