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ELRCPartially AllowedCause No 1266 of 2012· [2018] KEELRC 401 (KLR)

Isaac Opicho Mukhwana v Diakonia Sweden [2018] KEELRC 401 (KLR)

Employment and Labour Relations Court
20 December 2018
2,171 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled an NGO wrongly fired its finance officer without a hearing, awarding him over USD 20,000 and dismissing the employer's counterclaim.

What this practically means

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Executive summary

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The claimant, employed as Finance and Administration Officer on a Somalia-based project from 11 April 2011, was summarily dismissed on 2 July 2012 over allegations that he embezzled USD 19,261.16 in project funds. He claimed notice pay, per diem, pension, rest and recuperation days, leave pay, salary for the unexpired term and severance pay. The respondent counterclaimed for the allegedly embezzled sum, invoking Section 44(g) of the Employment Act on gross misconduct. The court framed three issues: lawfulness and fairness of the dismissal, entitlement to remedies, and the counterclaim. It found the dismissal substantively and procedurally unfair: no specific charges were ever served on the claimant, no disciplinary meeting was held, and his repeated requests for a meeting outside the respondent's office were unreasonably refused. The investigation was poorly conducted, with discrepancies between the Puntland police report and the incident report regarding cheque numbers and values, and cited vouchers never produced, leaving the court unable to establish the exact amount allegedly embezzled. The claimant was condemned unheard. The court awarded six months' salary as compensation, three months' salary in lieu of notice and leave pay for 17 days, totalling USD 20,558, with interest from the date of judgment. Claims for pension, severance pay, unexpired-term salary, per diem and rest and recuperation days failed for want of proof, as did the respondent's counterclaim. The claimant received the costs of the case.

Key legal issues

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01

Lawfulness and fairness of summary dismissal

Holding

Dismissal was substantively and procedurally unfair; no valid reason established under Section 43 and no charges served or disciplinary meeting held.

Reasoning

The employer accused the claimant of embezzling USD 19,261.16 but the investigation was poorly conducted: cheque numbers and values differed between the police report and incident report, cited vouchers were never produced, and beneficiary and brokerage reports were not filed. No specific charges were served and no disciplinary meeting was held; the claimant's request for a meeting outside the office was unreasonably refused. He was condemned unheard, so neither the substantive reason nor procedural fairness requirements were met.

p. 4
02

Remedies for unfair dismissal

Holding

Six months' salary compensation, three months' notice pay and 17 days' leave pay awarded; other heads dismissed as unproved.

Reasoning

Compensation of six months' salary took into account length of service and the respondent's conduct in effecting dismissal. Notice pay followed the contract. Leave pay succeeded absent contrary leaver records. Pension, severance, unexpired-term salary, per diem and R & R claims failed for want of proof.

p. 4
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Respondent's counterclaim

Holding

Counterclaim for USD 19,261.16 failed as the embezzlement charge was not proved.

Reasoning

Since the court found the respondent failed to prove the charge of misappropriation against the claimant, the counterclaim founded on the same alleged embezzlement necessarily failed.

p. 4

Legal principles established

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  • An employer does not discharge the evidential burden under Section 43 unless clear charges leading to termination were placed before the employee for response.
  • Dismissal without a disciplinary meeting and without serving charges is substantively and procedurally unfair.

Court orders

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  1. 1.Judgment entered in favour of the Claimant: 6 months' salary in compensation USD 12,900
  2. 2.3 months' salary in lieu of notice USD 6,450
  3. 3.Leave pay for 17 days USD 1,218 (total USD 20,558)
  4. 4.Interest at court rates from the date of delivery of judgment until payment in full
  5. 5.Claimant awarded costs of the case
  6. 6.Counterclaim dismissed

Authorities

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Legislation

  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 44(g)

Cases cited (2)

  • International Planned Parenthood Federation v Pamela Ebot ArreyEffiom
    [2016] eKLR
  • Rashid Jeneby v Prime Bank Limited
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007; Employment and Labour Relations Court Act)

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, "Isaac Opicho Mukhwana v Diakonia Sweden [2018] KEELRC 401 (KLR)", Case Analysis (2018). Cause No 1266 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/401/eng@2018-12-20

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