Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedCause No 341 of 2014· [2019] KEELRC 290 (KLR)

Jane Mutuha Wasilwa v Postal Corporation of Kenya (Cause 341 of 2014) (Employment and Labour) [2019] KEELRC 290 (KLR)

Employment and Labour Relations Court
22 November 2019
MOMAUREEN ONYANGO
4,592 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

#

A Kenyan court upheld the dismissal of a Postal Corporation manager for negligence, ruling the employer followed fair procedure and the employee failed to prove unfair termination.

What this practically means

#

Executive summary

#
The Claimant, employed by the Respondent in 1987 and rising to Regional Manager Nyanza Province, was interdicted in November 2012 over a fraudulent loss of Kshs.18,217,204.40 at Ugunja Post Office, issued a show cause letter on 10th May 2013, heard by a Special Disciplinary Committee on 13th September 2013, and dismissed on 27th September 2013 for gross negligence of duty. She sued seeking declarations that the interdiction and dismissal were wrongful, unfair and discriminatory, reinstatement, salary during interdiction, and extensive terminal benefits, allowances, pension and other dues running to her anticipated retirement in July 2024. The Respondent maintained that her failure to conduct inspections, enforce cash limits and supervise staff caused the loss, and that due procedure under sections 41 and 44 of the Employment Act and the Postal Code was followed. The court framed two issues: whether the termination was lawful and fair, and whether the Claimant was entitled to the reliefs sought. It found the reasons for termination valid and fair, holding that the Claimant breached her obligations by admitting no inspections were done, and that blame-shifting did not negate her own duties. Procedural fairness was satisfied; her allegations of committee bias and denial of accompaniment were never raised in the appeal, which she declined to attend. Relying on section 47(5), the court held she failed to prove unfair termination. Reinstatement was refused as the termination was upheld and over three years had lapsed; anticipatory terminal benefits to retirement were denied on mitigation principles. The entire claim was dismissed with each party bearing its own costs.

Key legal issues

#
01

Validity and fairness of the reason for termination

Holding

The reasons were valid and fair - the Claimant's negligence occasioned the Respondent a loss of Kshs.18,217,204.40

Reasoning

The Claimant's job description required her to ensure proper inspections and enforce cash limits. She admitted no inspections were done at Ugunja and was aware of the Kshs.200,000 cash limit. Holding the position of Regional Manager, she owed a duty of diligence which she breached; blame-shifting to other officers did not negate her own duties.

p. 6
02

Whether the disciplinary procedure complied with natural justice and section 41 of the Employment Act

Holding

Procedure was duly followed; the Claimant was heard and her allegations of bias were unsubstantiated

Reasoning

The Claimant was interdicted on half pay per her terms, issued a show cause letter, responded, and was heard by the Committee. Allegations of committee bias were never raised during proceedings or appeal. She declined to attend her appeal hearing. Failure to raise grievances in the appeal undermined her procedural complaints.

p. 6
03

Whether the Claimant was entitled to reinstatement and terminal benefits to retirement

Holding

Reinstatement unavailable (termination upheld and over 3 years elapsed); anticipatory terminal benefits denied

Reasoning

Reinstatement is a discretionary equitable remedy available only where termination is unfair and within 3 years. Terminal benefits to 2024 are anticipatory damages; the law requires mitigation and does not permit awards of sanguine assessments of future prospects. The Claimant had also been paid all her dues.

p. 6

Legal principles established

#
  • Under section 45(2) of the Employment Act, the employer bears the burden of proving that the reason for termination is valid and fair
  • Under section 41(2) of the Employment Act the procedure of hearing an employee in the presence of a colleague or shop floor union representative is mandatory
  • Under section 47(5) the employee bears the burden of proving unfair termination
  • Anticipatory remuneration to retirement is not awardable; an aggrieved employee must mitigate losses

Court orders

#
  1. 1.The entire claim is dismissed
  2. 2.Each party to bear its own costs

Authorities

#

Legislation

  • Employment Actsection 41(2)
  • Employment Actsection 43(2)
  • Employment Actsection 44
  • Employment Actsection 45(2)(a) and (b)
  • Employment Actsection 47(5)
  • Employment Act 2007general reference in termination letter
  • Postal Code regulationsparagraph 3.7.6; Section L

Cases cited (10)

  • Kenya Union of Commercial Food and Allied Workers vs. Meru North Farmers Sacco
    [2014] eKLR
  • CMC Aviation Limited vs. Captain Mohammed Noor
    [2015] eKLR
  • Jacob Oriando Ochanda vs. Kenya Hospital Association Limited t/a Nairobi Hospital
    [2019] eKLR
  • Ndolo Njeka vs. Lavage Dry Cleaners Limited
    [2013] eKLR
  • Mathew Lucy Cherusa vs. Poverelle Sisters of Belgamo T/A Blessed Louis Palazzalo Health Centre
    [2013] eKLR
  • Kenya Power & Lighting Company Limited vs. Aggrey Lukorito Wasike
    [2017] eKLR
  • Sotik Highlands Tea Estates Limited vs. Kenya Plantation and Agricultural Workers Union
    [2017] eKLR
  • Mary Chemweno Kiptui vs. Kenya Pipeline Company Limited
    [2014] eKLR
  • D.K. Njagi Marete v Teachers Service Commission
    [2013] eKLR
  • Menginya Salim Murgani v. Kenya Revenue Authority
    High Court Civil Case No. 1139 of 2002
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court (Employment Act, sections 41, 43, 44, 45 and 47(5))

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Jane Mutuha Wasilwa v Postal Corporation of Kenya (Cause 341 of 2014)  (Employment and Labour) [2019] KEELRC 290 (KLR)", Case Analysis (2019). Cause No 341 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/290/eng@2019-11-22

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