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ELRCPartially AllowedCause No. 811 of 2013· [2018] KEELRC 468 (KLR)

Anthony Kyalo Mwololo v Rift Valley Railways (Kenya) Ltd [2018] KEELRC 468 (KLR)

Industrial Court of Kenya
3 December 2018
DMD. K. Njagi MareteMOMaureen Onyango
2,073 words in judgment
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The bottom line

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Kenya's Industrial Court ruled Rift Valley Railways unfairly fired an employee, because even solid fraud allegations don't excuse skipping proper disciplinary procedure.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a Locomotive Inspecting Officer from 1st November 2006 at a salary that had risen to Kshs.69,231.00, was dismissed on 23rd August 2012 on allegations of gross misconduct: submitting forged bus receipts for fare charges for 10 crew members amounting to Kshs.10,000 for journeys not made, and failing to hand over Kshs.35,700 in time for official use. He claimed the termination was unfair under section 45(4)(b) of the Employment Act, 2007, denying the allegations and explaining his role in the crew fare process, and sought damages under section 49, a declaration of unfair dismissal, compensation or reinstatement in the alternative, costs and interest. The respondent admitted parts of the claim but asserted the claimant was charged on valid grounds of gross misconduct and was given an opportunity to be heard and a disciplinary committee hearing which he chose not to utilise. The court framed three issues: whether the termination was wrongful, unfair and unlawful; entitlement to relief; and costs. Relying on sections 41 and 45 of the Employment Act, the court found from the respondent's bundle of documents no indication that the claimant was taken through appropriate disciplinary proceedings under section 41(1) and (2); despite evidence of fraud and misconduct, the respondent failed to follow the procedure required by law. The court declared the termination wrongful, unfair and unlawful, awarded four months' salary as compensation (Kshs.276,924.00), and ordered the respondent to bear the costs. The claim was allowed. The respondent filed no written submissions and had no appearance at the hearing.

Key legal issues

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01

Whether the termination was wrongful, unfair and unlawful

Holding

Yes. The respondent did not take the claimant through appropriate disciplinary proceedings per section 41(1) and (2) of the Employment Act, 2007 despite adducing evidence of fraud and misconduct.

Reasoning

The court examined the respondent's bundle of documents and found no indication that the claimant was subjected to appropriate disciplinary proceedings under section 41(1) and (2) of the Employment Act, 2007. Although the respondent adduced evidence of fraud and misconduct, it was expected to put the claimant through disciplinary proceedings as provided by law, which it did not. Section 45 requires the employer to prove both a valid reason and a fair procedure; failure of procedure rendered the termination unfair.

p. 4
02

Whether the claimant is entitled to the relief sought

Holding

Yes. Having succeeded on unfair termination, the claimant became entitled to relief, and the court allowed the claim.

Reasoning

The court held that having won on a case of unlawful termination of employment, the claimant becomes entitled to the relief sought. It then allowed the claim and issued a declaration of wrongful, unfair and unlawful termination, compensation of four months' salary, and costs against the respondent.

p. 4

Legal principles established

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  • Where an employer adduces evidence of an employee's misconduct, the employer must still take the employee through disciplinary proceedings as provided for by section 41 of the Employment Act before termination; failure to do so renders the termination wrongful, unfair and unlawful

Court orders

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  1. 1.A declaration that the termination of the employment of the claimant by the respondent was wrongful, unfair and unlawful
  2. 2.Four (4) months' salary as compensation for unlawful termination of employment (Kshs.69,231.00 x 4 = Kshs.276,924.00)
  3. 3.The costs of the claim to be borne by the respondent

Authorities

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Legislation

  • Employment Act, 2007section 45(4)(b)
  • Employment Act, 2007section 41(1) and (2)
  • Employment Act, 2007section 45(1), (2), (3) and (4)
  • Employment Act, 2007section 44(1), (2) and (3)
  • Employment Act, 2007section 49
  • Constitution of Kenya, 2010Articles 10, 25, 27, 41, 43, 45, 47, 48, 30 and 159

Cases cited (2)

  • Nicholus Muasya Kyula v. Farmchem Limited
    Industrial Cause Number 1992 of 2011
  • Mkala Chitavi v. Malindi Water & Sewarage Company Limited
    Industrial Cause Number 64 of 2012
Jurisdiction invoked
Employment and labour relations jurisdiction of the Industrial Court (unfair termination claim under section 45(4)(b) of 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, "Anthony Kyalo Mwololo v Rift Valley Railways (Kenya) Ltd [2018] KEELRC 468 (KLR)", Case Analysis (2018). Cause No. 811 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/468/eng@2018-12-03

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