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ELRCPartially AllowedCause No 923 of 2014· [2018] KEELRC 2129 (KLR)

Wakoli Fredrick Kasembeli & another v Wakoli Fredrick Kasembeli [2018] KEELRC 2129 (KLR)

Employment and Labour Relations Court
13 April 2018
1,410 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 ordered the Red Cross to pay two former security staff millions for firing them without valid reasons or a fair hearing.

What this practically means

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Executive summary

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The Claimants, formerly Head of Security and Security Officer with the International Committee of the Red Cross, sued for compensation for unfair termination following the dismissal of their employment on 29th/31st October 2012. The Respondent alleged the dismissals followed investigations into forgery of employee loan application documents orchestrated by one Gideon Omunyini, and that the Claimants failed in their duties by omitting to investigate a visit by Barclays Bank officials. The Court framed two issues: whether the termination was lawful and fair, and whether the Claimants were entitled to the remedies sought. The Court found that the termination letters disclosed no reasons, that the Respondent failed to demonstrate a valid reason under Section 43 of the Employment Act, noting no connection between the forgery investigations and the termination. Even assuming a security lapse, the mandatory disciplinary procedure under Section 41 was not followed, rendering the termination substantively and procedurally unfair. The Court declined to consider the Respondent's diplomatic immunity objection raised for the first time in final submissions, as it was neither pleaded nor canvassed at the hearing. Applying the reasonableness principle, the Court awarded the 1st Claimant eight months' salary (Kshs.1,629,616) and the 2nd Claimant twelve months' salary (Kshs.986,400), with interest at court rates from the date of judgment and costs of the case to the Claimants. Judgment was signed at Mombasa on 5th April 2018 by Linnet Ndolo J and delivered in open court at Nairobi on 13th April 2018.

Key legal issues

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01

Whether the Respondent demonstrated a valid and fair reason for terminating the Claimants' employment

Holding

No valid reason was demonstrated; there was no connection between the investigations into forged loan documents and the termination

Reasoning

The termination letters gave no reasons. The Respondent's witnesses alleged a security lapse, but the investigation report of 24th June 2012 had not implicated the Claimants. Applying the reasonableness principle under Section 43 of the Employment Act, the Court found no connection between the forgery investigations and the termination, so the Respondent failed to discharge its burden of proving a valid reason.

p. 3
02

Whether the termination complied with the procedural requirements of Section 41 of the Employment Act

Holding

The mandatory disciplinary procedure was not followed, rendering the termination procedurally unfair

Reasoning

Even assuming a security lapse, the Claimants were entitled to the mandatory disciplinary procedure under Section 41. The Claimants were merely summoned, questioned and handed termination letters without a proper disciplinary hearing, and their explanations were never tested through the statutory process.

p. 3
03

Whether the Court may entertain the diplomatic immunity objection raised in final submissions

Holding

The Court declined to consider the objection as it was neither pleaded nor canvassed at the hearing

Reasoning

The Respondent raised diplomatic immunity for the first time in final submissions. The Court held that raising an unpleaded issue at that stage amounts to pleading and testifying in final submissions and refused to consider it in the final judgment.

p. 3

Legal principles established

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  • An employer must demonstrate a valid reason for termination under Section 43 of the Employment Act, and the Court is guided by the principle of reasonableness in assessing this
  • Termination without reasons in the termination letter and without the mandatory disciplinary procedure under Section 41 is both substantively and procedurally unfair
  • A party cannot raise a jurisdictional objection (such as diplomatic immunity) for the first time in final submissions when it was neither pleaded nor canvassed at the hearing

Court orders

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  1. 1.Judgment entered for the 1st Claimant, Wakoli Fredrick Kasembeli, in the sum of Kshs.1,629,616 being eight (8) months' salary in compensation for unfair termination of employment
  2. 2.Judgment entered for the 2nd Claimant, Josephat Ayodi Luseno, in the sum of Kshs.986,400 being twelve (12) months' salary in compensation for unfair termination of employment
  3. 3.The awards to attract interest at court rates from the date of delivery of judgment until payment in full
  4. 4.The Claimants awarded the costs of the case

Authorities

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Legislation

  • Employment ActSection 43
  • Employment ActSection 41

Cases cited (2)

  • Paul Waigiri Muriuki v Nairobi Water and Sewerage Company Ltd
    [2015] eKLR
  • Rashid Jeneby v Prime Bank Limited
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (constitutional basis not stated in the judgment)

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, "Wakoli Fredrick Kasembeli & another v Wakoli Fredrick Kasembeli [2018] KEELRC 2129 (KLR)", Case Analysis (2018). Cause No 923 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2129/eng@2018-04-13

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