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ELRCPartially AllowedCause No 186 of 2013· [2018] KEELRC 1929 (KLR)

Dan Owuor Ongado v Lake Basin Development Authority [2018] KEELRC 1929 (KLR)

Employment and Labour Relations Court
6 June 2018
MNMathews N. Nduma
1,787 words in judgment
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The bottom line

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Kenya's Employment Court ruled that re-trying an employee on the same charges after reinstatement is unlawful double jeopardy, awarding his estate nearly Kshs.1.9 million.

What this practically means

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Executive summary

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The original claimant, a long-serving employee of the Respondent who rose to Chief Manager Finance Administration and Human Resource, died during the suit and was substituted by his wife. He was retired in public interest in January 2011 following disciplinary proceedings for alleged negligence occasioning expenditure of over Kshs.30 million and improper imprest handling. The parties proceeded by written submissions without adopting pleadings or evidence, and the court cautioned that sections 107 and 108 of the Evidence Act apply fully to ELRC proceedings after the 2014 amendment, so parties act at their peril when casual with evidence. The court found, on the Respondent's own admissions, that the deceased had been retired in public interest, reinstated after reconsideration, and then tried again on the same charges he had been exonerated from - a double jeopardy that violated Article 41 of the Constitution and sections 41 and 45 of the Employment Act, constituting an unfair labour practice and breaching legitimate expectations. The claim was proved on a balance of probabilities. Severance pay was refused as misconceived because the deceased was not declared redundant and drew benefits from the provident fund and NSSF. The court awarded maximum compensation of 12 months' gross salary (Kshs.1,516,812) under section 49(1)(c) and 49(4), plus Kshs.379,203 notice pay, interest, and costs against the Respondent.

Key legal issues

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01

Whether the disciplinary process was fair where the deceased was retired in public interest, reinstated, then re-tried on the same charges

Holding

The process was unfair and unlawful, amounting to double jeopardy and a violation of Article 41 of the Constitution and sections 41 and 45 of the Employment Act

Reasoning

The Respondent admitted that it retired the deceased in public interest, then lifted that decision, and thereafter charged him again with the same offence he had earlier been exonerated from. Legitimate expectations raised by the lifting of the retirement were dashed. The court held the admitted facts discharged the Claimant's burden of proof on a balance of probabilities under sections 47(5) of the Employment Act and 107-108 of the Evidence Act.

p. 2
02

Entitlement to compensation under section 49(1)(c) of the Employment Act

Holding

The deceased was entitled to the maximum compensation equivalent of 12 months gross salary

Reasoning

The court considered the deceased's 26 years of diligent service, his impending retirement, the mental torture from being tried twice, the non-payment of terminal benefits, and comparable authorities, and exercised its discretion under section 49(4) to award the maximum compensation of Kshs.1,516,812.

p. 3
03

Whether severance pay was payable

Holding

Severance pay was misconceived as the deceased was not declared redundant and drew retirement benefits from the provident fund and NSSF

Reasoning

Termination was for conduct, not redundancy, so severance under redundancy principles did not arise. Membership of the Respondent's registered provident fund and NSSF meant retirement benefits were already drawn, negating any claim for service pay.

p. 2
04

Whether notice pay was due

Holding

Three months' salary in lieu of notice awarded as the claim was admitted but payment before the deceased's death was not clarified

Reasoning

The Respondent admitted the notice claim but there was no clarity whether it had been paid before the death of the deceased; the court accordingly awarded Kshs.379,203.

p. 3

Legal principles established

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  • Subjecting an employee to disciplinary proceedings twice on the same facts violates Article 41 of the Constitution and section 41 of the Employment Act and constitutes an unfair labour practice
  • Parties before the ELRC who agree to proceed by way of written submissions without adopting pleadings and evidence must still tender evidence, failing which the party who asserts risks losing the case
  • Sections 107 and 108 of the Evidence Act apply to proceedings before the ELRC following the 2014 amendment

Court orders

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  1. 1.Kshs.1,516,812 being the equivalent of 12 months salary in compensation
  2. 2.Kshs.379,203 in lieu of three (3) months notice
  3. 3.Total award Kshs.1,896,015
  4. 4.Interest at court rates in respect of (a) above from date of judgment and from date of filing suit in respect of (b) above till payment in full
  5. 5.Respondent to pay costs of the suit

Authorities

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Legislation

  • Evidence Act, Cap 80 Laws of Kenyasections 107 and 108
  • Constitution of Kenya 2010Article 41
  • Employment Act, 2007sections 35(6), 41, 45, 47(5), 49(1)(c), 49(4)
  • State Corporations Actnot specified (approval of expenditure)
  • Civil Service Code of RegulationsClause 2.3
  • Employment and Labour Relations Court Actas amended by Act No. 18 of 2014

Cases cited (2)

  • Ruth Pamela Adhiambo vs Maseno University
    Kisumu ELRC Cause No.65 of 2016
  • Eunice Ayoyi Cheti vs Evans Asenaka T/A Child of God Academy
    Nairobi ELRC Cause No.792 of 2010
Jurisdiction invoked
Article 41 of the Constitution of Kenya 2010 and the Employment Act, 2007; Employment and Labour Relations Court Act as amended by Act No. 18 of 2014

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Dan Owuor Ongado v Lake Basin Development Authority [2018] KEELRC 1929 (KLR)", Case Analysis (2018). Cause No 186 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1929/eng@2018-06-06

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