Munyao & 4 others v Kenya Ports Authority & another (Petition 11 of 2015) [2016] KEELRC 1692 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Cause of action against the 2nd Respondent
No cause of action was disclosed against the 2nd Respondent (the Managing Director); joinder was unnecessary where no bad faith or abuse of office was alleged
The pleadings set out no facts forming a cause of action against the 2nd Respondent as an office within the Kenya Ports Authority, and no allegations of bad faith or abuse of office. Although the statutory definition of 'employer' in section 2 of the Employment Act is wide, joinder was unnecessary since the employer (1st Respondent) was already cited. The court adopted the Respondents' separate legal personality authorities while noting their limits in employment relationships.
Whether there was a go slow and whether the Claimants participated
There was a go slow, but the 1st and 5th Claimants were not on active duty and could not have participated; the Respondents failed to prove culpability of the Claimants among over 90 gantry operators
Performance records showed a dip in targets from 29 to 30 March 2011 due to a go slow. However, the 1st Claimant was on standby for the third shift and did not operate any machine; the 5th Claimant was on dormant duty and had a logical explanation for his presence at the terminal. The Respondents' second witness admitted the interdiction of the 1st Claimant was based on incorrect facts.
Lawfulness of the warnings of 30 March 2011
The warnings were unprocedural and unfair because the Respondents did not comply with their own internal disciplinary procedures before issuing them
Sections K.4(c) and K.8 of the Disciplinary Handbook required preliminary investigations, framing of charges and 72 hours to show cause before a sanction of warning. No evidence showed these steps were taken, so the warnings, though contractually founded, were procedurally unfair.
Lawfulness of the interdictions
The interdictions were lawful and fair, having contractual basis and following the Handbook procedures including show cause and personal hearing
Section K.7 of the Handbook allowed interdictions to facilitate investigations. The Claimants were informed of allegations, asked for written explanations and invited to personal hearings. The 1st Respondent therefore exercised its contractual authority lawfully and fairly.
Conditions attached to lifting of interdictions (redeployment, surcharge, fresh probation)
Redeployment and fresh probation as sanctions had no contractual or statutory basis and amounted to unfair labour practices; the surcharge was arbitrary as loss was not proved and should be refunded
The Handbook prescribed the sanctions available upon findings of guilt, and redeployment and fresh probation were not among them. No contractual or statutory provision authorised redeployment as a penalty. The surcharge under Section K.11 required proof of personal culpability for a quantified loss, which the Respondents failed to establish despite calling an accountant.
Non-production of the Oyaro Committee report and other inquiry documents
The Respondents' refusal to produce the reports justified an adverse inference that they may not have established the Claimants' culpability
The reports were never produced despite a Notice to Produce and a Notice of Non Production. The Court found the unwillingness to produce the Oyaro report disturbing, casting doubt on whether the Committee found the Claimants culpable and whether the sanctions were recommended. In the era of transparency and accountability, and considering Articles 35 and 236 of the Constitution, an adverse inference was warranted.
Appropriate remedies
Warnings to be expunged from employment records; 1st and 5th Claimants restored to gantry operations; Kshs 245,580 surcharge refundable to each Claimant; general damages of Kshs 800,000 to each Claimant for unfair labour practices; special damages claim fails for remoteness
In lieu of declarations, the Court ordered the warnings expunged. Having found no factual basis for disciplinary action against the 1st and 5th Claimants, restoration was ordered for them, but restoration was inappropriate for the 2nd to 4th Claimants. The unfair labour practices justified general damages assessed at Kshs 800,000 per Claimant. The surcharges were arbitrary and refundable; the special damages claim failed as remote.
Legal principles established
#- A warning is a sanction which must be preceded by the disciplinary process, including preliminary investigations, framing of charges and an opportunity to be heard, in compliance with the employer's own internal procedures
- Redeployment imposed as a disciplinary sanction without contractual or statutory basis amounts to an unfair labour practice attracting the Court's intervention
- An employer may not impose a penalty not supported by contract or law; permissible outcomes after due process are termination, a warning, or no prejudicial action
- Fresh probation cannot serve as a penalty or sanction for misconduct or poor performance
- A surcharge must be treated as special damage, with the loss quantified and proved, and where unjustified it must be refunded
- Where a party withholds documents in its custody, the Court may draw an adverse inference, particularly for public sector entities under Articles 35 and 236 of the Constitution
Court orders
#- 1.The 1st and 2nd Claimants to be restored to their positions/responsibilities as gantry operators with immediate effect
- 2.The Claimants to have costs of the Cause
- 3.The Cause to be transmitted back to the Employment and Labour Relations Court, Mombasa immediately after delivery of the judgment for any further processes as may be necessary
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Constitution (matter transferred from the High Court, Mombasa, by consent on jurisdictional grounds; determined as an ordinary Cause under the Employment Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Munyao & 4 others v Kenya Ports Authority & another (Petition 11 of 2015) [2016] KEELRC 1692 (KLR)", Case Analysis (2016). Petition No 11 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1692/eng@2016-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.