Stephen Wachira Murakaru v Tana & Athi River Development Authority [2018] KEELRC 848 (KLR)
The bottom line
#A Kenyan court awarded a wrongfully dismissed TARDA accountant over KShs 3.1 million, ruling the employer proved no misappropriation and its counterclaim came too late.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was for a lawful reason
The dismissal was wrongful and unfair; the Kshs.500,000 was entrusted by the community, not the Respondent, was disclosed, and no misappropriation was proved
The court weighed the pleadings, documents and oral testimony of the Plaintiff and RW1. It found the Kshs.500,000 came from the community for a community project, that the Plaintiff disclosed receipt and utilization while works were ongoing, and that there was no evidence of misappropriation. The dismissal was therefore without justifiable cause and in breach of natural justice.
Applicable law and measure of damages for a 2004 dismissal
The repealed Employment Act Cap 226 applied and made no provision for compensation; common law damages for breach of the employment contract applied, limited to notice pay
The dismissal predated the Employment Act, 2007. The applicable statute (Employment Act Cap 226) made no provision for compensation, so common law principles governed damages for breach of the employment contract. Under the common law then prevailing, general damages beyond notice pay were not recoverable, though accrued pension and withheld salary entitlements were awarded.
Whether the counterclaim was time barred
The counterclaim of Kshs.413,633, first elaborated in the amended defence about seven years after the cause of action, was time barred under section 4 of the Limitation of Actions Act and otherwise unproved
The counterclaim arose from events between July and October 2002 but was only particularised in the 2009 amended defence, about seven years later. Section 4 of the Limitation of Actions Act caps contract claims at six years, so the court lacked jurisdiction. Independently, RW1's testimony did not substantiate the claim on a balance of probabilities, so it was also dismissed for want of merit.
Legal principles established
#- Summary dismissal is wrongful and unfair where the funds alleged to have been misappropriated were not the employer's and there is no evidence of misappropriation
- Where a counterclaim founded on contract is filed beyond the six-year limitation period, the court lacks jurisdiction to entertain it
Court orders
#- 1.Judgment entered for the Plaintiff against the Respondent
- 2.Kshs.829,440 in respect of ½ salary not paid for 8 months and full salary not paid for the 8 subsequent months of suspension without pay
- 3.Kshs.207,360 in lieu of three months' notice
- 4.Kshs.2,133,098 being the employer contribution of pension
- 5.Total award of Kshs.3,169,898 with interest at court rates from date of dismissal till payment in full
- 6.Respondent to pay costs of the suit
- Jurisdiction invoked
- Original employment jurisdiction; suit originally filed in the High Court on 25th October 2005 and determined under the Employment Act Cap 226 (repealed)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Wachira Murakaru v Tana & Athi River Development Authority [2018] KEELRC 848 (KLR)", Case Analysis (2018). Cause No 1737 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/848/eng@2018-10-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.