Dominic Muthusi Mbithi v Kenya Post Office Savings Bank [2018] KEELRC 2524 (KLR)
The bottom line
#Kenya's Employment Court ruled that an employer who punishes an employee without a hearing, or stacks multiple penalties for one issue, must pay full compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant's summary dismissal for insubordination was lawful and fair
The dismissal was unlawful and unfair; the Respondent ignored the dictates of Section 41 of the Employment Act on the right to be heard and used transfers to compound disciplinary processes gone awry
The Claimant was subjected to repeated disciplinary actions arising from disputed matters without being apprised of investigation outcomes. No investigation report was produced. His legitimate queries were met with transfers rather than answers. The Respondent failed to comply with Section 41 of the Employment Act, 2007 on the right to be heard, rendering the interdiction and subsequent dismissal unlawful and unfair.
Whether the surcharge of Kshs. 70,000 and the ten-month interdiction were lawful
Both the surcharge and the interdiction were unlawful; the surcharge was imposed in haste without a hearing, and the prolonged interdiction had no basis in law or the Respondent's internal rules
The decision to surcharge was made without affording the Claimant an opportunity to be heard, and in the absence of due procedure the Court could not verify any loss. The recommendation to lift the interdiction had been made as early as July/August 2008 but the Respondent acted only in May 2009, then unilaterally imposed a warning and re-deployment with no basis in law or internal rules.
Whether the Claimant is entitled to the remedies sought
The Claimant was awarded twelve months' salary in compensation, one month's pay in lieu of notice, withheld salary for ten months, refund of the surcharge, a certificate of service and costs
In assessing compensation the Court took into account the Claimant's length of service and the Respondent's conduct. The finding that the interdiction was unlawful entitled the Claimant to his withheld salary, and the unlawfulness of the surcharge entitled him to a refund.
Legal principles established
#- Surcharge is a serious disciplinary action that must be taken pursuant to due procedure, including affording the employee an opportunity to be heard
- Subjecting an employee to multiple penalties for the same offence amounts to multiple jeopardy which the court will not countenance
- Transfers are a normal management prerogative which the court will not normally interfere with, but they cannot be used to camouflage disciplinary processes gone awry
Court orders
#- 1.Twelve (12) months' salary in compensation for unlawful dismissal of Kshs. 1,345,920
- 2.One (1) month's salary in lieu of notice of Kshs. 112,160
- 3.Payment of withheld salary for ten (10) months of Kshs. 280,000
- 4.Refund of the unlawful surcharge of Kshs. 70,000
- 5.Total award of Kshs. 1,808,080, subject to statutory deductions, with interest at court rates from the date of judgment until payment in full
- 6.Issuance of a certificate of service to the Claimant
- 7.Respondent to pay the costs of the case
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (employment and labour relations disputes); Employment Act, 2007, Section 41
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dominic Muthusi Mbithi v Kenya Post Office Savings Bank [2018] KEELRC 2524 (KLR)", Case Analysis (2018). Statement of Claim dated 10th March 2014, filed 11th March 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2524/eng@2018-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.