Steve N Muinde v Kenya National Examinations Council [2018] KEELRC 197 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the dismissal was unfair - valid and fair reason
A valid and fair reason existed: the claimant's signing against an unauthorised entry in the dispatch register without enquiry or notifying his senior constituted dishonest and negligent conduct
The court found the principal of Obera Boys collected the results and made an entry on the dispatch register in the claimant's custody. The claimant noticed the illegal entry on 16/4/2012 but signed against it merely to avoid an ISO audit query, without verifying with Mr Ng'etich or his supervisor whether the results had been released through the correct procedure. The court held this conduct inconsistent with diligent and honest performance of duty and a valid reason under clause 13.21.9(d) of the HR Manual.
Whether a fair procedure was followed before dismissal
No; the mandatory procedure in section 41 of the Employment Act was not followed, rendering the summary dismissal unfair and wrongful notwithstanding the valid reason
The employer did not accord the claimant a hearing before dismissal, explaining the reasons in the presence of a fellow employee or representative and allowing representations. The respondent's internal terms of service relied on were not produced in court, so the court resorted to the statutory minimum procedure. The hearing at the appeal stage did not cure the pre-dismissal unfairness, and the claimant was treated discriminatorily compared to other staff in his department who were interdicted and heard.
Entitlement to reliefs
Notice pay and maximum 12 months' compensation awarded; reinstatement barred by limitation; severance pay refused
The court awarded one month's notice pay and 12 months' salary as maximum compensation under section 49(1), considering 19 years of service from 1993 to 2012, the claimant's failure to secure alternative employment since dismissal, and non-payment of gratuity. Reinstatement was barred by section 12(3) of the ELRC Act. Severance pay was refused because termination was for misconduct, not redundancy, though the claimant may pursue pension/gratuity claims.
Legal principles established
#- Termination is unfair if the employer fails to prove both a valid and fair reason and that a fair procedure was followed; a hearing at appeal does not cure pre-dismissal procedural unfairness under section 41 of the Employment Act
- Reinstatement may not be ordered after three years have lapsed from the date of separation
Court orders
#- 1.Declaration that the claimant's summary dismissal was wrongful and unfair
- 2.One month's salary in lieu of notice of Kshs.71,900
- 3.Compensation of 12 months' salary equivalent to Kshs.862,800
- 4.Total decreed sum of Kshs.934,700 to be paid less statutory deductions
- 5.Costs of the suit to the claimant
- 6.Interest from the date of judgment
- 7.Claim for severance pay dismissed; claimant at liberty to pursue social security benefits under his contract, HR Policy or the law including pension and/or gratuity
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the ELRC Act and Employment Act (section 12(3) ELRC Act; sections 41, 45, 49 and 51 Employment Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Steve N Muinde v Kenya National Examinations Council [2018] KEELRC 197 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/197/eng@2018-12-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.