Josephine Ngatia v Executive Director of the Non-Governmental Organisation Co-ordination Board & another [2018] KEELRC 1026 (KLR)
The bottom line
#A Kenyan court ruled a manager's dismissal unfair because her employer couldn't prove she skipped work, awarding her 12 months' salary.
What this practically means
#Executive summary
#Key legal issues
#Valid reason for summary dismissal
The respondents failed to prove the alleged abscondment; the dismissal was unlawful and unfair.
The petitioner and her witness testified she was absent with permission of her supervisor. The internal memo alleging absences was contested and its alleged author, who was on study leave, was not called to testify, and the witness statement containing it was not subjected to cross-examination. The respondents therefore did not discharge the burden of proving a valid reason for dismissal.
Victimisation
The petitioner was victimised by the 1st respondent; the dismissal resulted from her refusal to go on transfer, which itself flowed from her refusal to certify suspect academic certificates and her appearance before EACC.
The petitioner's testimony that the transfer, denial of access to her workstation, show cause letter, suspension and dismissal followed her refusal to certify the 1st respondent's academic papers and her EACC appearance was corroborated by the Deputy Executive Director (CW2). Those averments, including that no proper investigations were carried out, were not rebutted by the respondents.
Alleged constitutional violations (Articles 10, 73 and 75)
Claim of constitutional violation dismissed for lack of sufficient evidence.
Although the 1st respondent's conduct may have been hostile, the petitioner did not adduce sufficient evidence enabling the court to make a finding of violation of the cited constitutional provisions. Consistent with the Anarita Karimi threshold relied on by the respondents, precise pleading and proof of the manner of breach is required.
Remedies
Maximum compensation of 12 months' salary (Kshs.2,534,563.80) awarded; reinstatement declined as an alternative remedy.
The court took into account length of service, the manner of termination and legitimate expectations after long clean service in awarding the maximum 12 months' compensation. Since compensation and reinstatement are alternative remedies and compensation was awarded, reinstatement was not considered viable.
Legal principles established
#- An employer bears the burden of proving the valid reason relied upon for summary dismissal; failure to do so renders the dismissal unlawful and unfair.
- Compensation and reinstatement are alternative remedies for unfair termination.
- Maximum compensation may be awarded taking into account length of service, manner of termination and the employee's legitimate expectations after long clean service.
Court orders
#- 1.Declaration that the dismissal of the petitioner was unfair (compensation for unfair termination awarded)
- 2.Finding that the petitioner was victimised by the 1st respondent
- 3.Award of maximum compensation of 12 months' salary at Kshs.2,534,563.80 for unfair termination
- 4.Dismissal of the prayer for declarations of violation of Articles 10, 73 and 75 of the Constitution
- 5.Decline of the prayer for reinstatement
- 6.The respondents shall pay the petitioner's costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes and alleged constitutional violations in the employment relationship
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Edward Otsieka Opiayo v Insurance Regulatory Authority [2020] KEELRC 427 (KLR)[2020] KEELRC 427 (KLR)1 Oct 2020
- Rael Mwiyathi Mutinda v Kenya Commercial Bank Limited [2019] KEELRC 2352 (KLR)[2019] KEELRC 2352 (KLR)29 Jan 2019
Cite this brief
#Cite this brief
Caselaw, "Josephine Ngatia v Executive Director of the Non-Governmental Organisation Co-ordination Board & another [2018] KEELRC 1026 (KLR)", Case Analysis (2018). Petition dated 9th February 2017 (amended) – Employment and Labour Relations Court. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1026/eng@2018-10-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.