Kennedy Moindi Otwori v National Treasury & another [2018] KEELRC 334 (KLR)
The bottom line
#Even when an employer botches the dismissal procedure, a Kenyan court can deny compensation entirely if the employee's own misconduct caused the dismissal.
What this practically means
#Executive summary
#Key legal issues
#Whether termination was unfair
Procedurally unfair for lack of hearing under section 41, but substantively justified and the procedural defect excused
The respondents failed to call a witness, leaving the claim's averments unchallenged, so no valid reason was established under sections 43 and 47(5). No disciplinary hearing was held contrary to section 41. However, the claimant admitted an unauthorised inter-vote transfer and reported losses belatedly only when he could no longer cover up, so a hearing would have been superfluous and he was not a whistle blower.
Whether the claimant was a whistle blower
No - he knew of the missing cash long before reporting and failed in his duties
The internal memo of 14.04.2015 showed the claimant knew about the missing cash more than a year before reporting; he did not dispute this. The cashier had refunded over Kshs. 2 Million. The claimant only reported belatedly when he could no longer cover the irregularities, so the whistle-blower characterisation failed.
Entitlement to remedies
Remedies denied; suit dismissed with each party bearing own costs
The claimant substantially contributed to his dismissal by belated reporting and admitting an unauthorised inter-vote transfer of Kshs. 235,040. His contribution diminished his entitlement under section 49. His failure to pursue the available appeal to the 2nd respondent was a mitigating factor for the respondents. Considering the parties' margins of success, each party was to bear own costs.
Legal principles established
#- An employer must establish the reason for termination by relevant evidence under sections 43 and 47(5) of the Employment Act
- Failure to accord a disciplinary hearing under section 41 renders termination procedurally unfair, but the irregularity may be excused where a hearing would serve a superfluous purpose
- An employee's contribution to dismissal diminishes compensation entitlement under section 49 of the Employment Act
Court orders
#- 1.Judgment entered for the parties and the suit dismissed
- 2.Each party to bear own costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kennedy Moindi Otwori v National Treasury & another [2018] KEELRC 334 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/334/eng@2018-12-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.