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Case Brief · caselaw.co.ke
ELRCDismissedNot stated in judgment· [2018] KEELRC 334 (KLR)

Kennedy Moindi Otwori v National Treasury & another [2018] KEELRC 334 (KLR)

Employment and Labour Relations Court
14 December 2018
2,057 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant, a civil servant employed as an Accountant II from 01.07.1991 and deployed as District Accountant at Mwingi Central Sub-County Treasury, was dismissed by letter dated 09.12.2016 on grounds of gross misconduct following an audit that found unaccounted funds of about Kshs. 25.8 million. He sought declarations that the termination was unlawful, reinstatement, salary and benefits, general damages or alternatively gratuity and salary totalling Kshs. 2,220,000. The respondents filed no formal defence, but their replying affidavit was by consent deemed the defence. The court found the respondents failed to call a witness, so did not establish a valid reason for termination under sections 43 and 47(5) of the Employment Act, and that no disciplinary hearing was held contrary to section 41, rendering the termination procedurally unfair. However, the court found the claimant was not a whistle blower: he knew of the missing cash more than a year before reporting it, admitted an unauthorised inter-vote transfer of Kshs. 235,040, and reported the losses only belatedly when he could no longer cover up the irregularities. The procedural irregularity was excused as a hearing would have served a superfluous purpose. The claimant's contribution substantially diminished any entitlement to compensation under section 49, and his failure to pursue the available internal appeal weighed against him. The suit was dismissed with each party bearing own costs, particularly given the respondents' failure to file a statement of response as required by the rules.

Key legal issues

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01

Whether termination was unfair

Holding

Procedurally unfair for lack of hearing under section 41, but substantively justified and the procedural defect excused

Reasoning

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.

p. 3
02

Whether the claimant was a whistle blower

Holding

No - he knew of the missing cash long before reporting and failed in his duties

Reasoning

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.

p. 3
03

Entitlement to remedies

Holding

Remedies denied; suit dismissed with each party bearing own costs

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Judgment entered for the parties and the suit dismissed
  2. 2.Each party to bear own costs of the suit

Authorities

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Legislation

  • Employment Actsections 41, 43, 47(5), 49
  • Pensions ActCap 189
  • Constitution of KenyaArticle 159
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.