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ELRCPartially AllowedCause No. 439 of 2017· [2019] KEELRC 377 (KLR)

Caroline Wanjiru Karori v Board of Trustees, National Social Security Fund (NSSF) [2019] KEELRC 377 (KLR)

Employment and Labour Relations Court of Kenya
24 October 2019
7,442 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled NSSF unfairly dismissed its Rift Valley manager, awarding her about Ksh.6.4 million because the employer relied on manipulated records and denied her a fair hearing.

What this practically means

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Executive summary

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The claimant, formerly Regional Manager Rift Valley of the National Social Security Fund, was summarily dismissed on 16th October 2017 following an investigation triggered by an anonymous whistle-blower's letter alleging she falsified work tickets to claim extra night-out imprests totalling Ksh.60,000 over five trips. She sued seeking a declaration that the dismissal was unfair and unlawful, reinstatement, or alternatively compensation of 18 years' salary, three months' notice pay, and costs. The respondent defended the dismissal as lawful gross misconduct under section 44(4)(g) of the Employment Act, asserting procedural fairness through a show cause notice and disciplinary hearing before the executive committee. The court framed three issues: whether termination was unfair and unlawful, whether due process was followed, and the appropriate remedies. Analysing the Glosec Services Limited vehicle parking records underpinning the allegations, the court found the records ambiguous, duplicated and manipulated, and noted the audit report was never shared with the claimant, breaching sections 41 and 43(2) of the Employment Act. The court found no genuine, valid or fair reason for the dismissal, held her petition to the Permanent Secretary, Ministry of Labour was protected under section 46(h), and declared the summary dismissal unfair. Reinstatement was declined as impracticable in a hostile work environment, and compensation was limited to ten months' gross pay (Ksh.4,916,480.70) plus notice pay of Ksh.1,475,052.21, payable within 30 days with interest thereafter, and costs of the suit awarded to the claimant.

Key legal issues

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01

Whether the respondent had valid, genuine and fair reasons for the summary dismissal

Holding

The court found no genuine, valid or fair reason for the dismissal; the reliance on anonymous whistle-blower information and vehicle parking records which the court found manipulated could not sustain the allegations of falsified work tickets and fraudulently claimed night-out allowances.

Reasoning

The court analysed the Glosec Services Limited parking records relied upon by the respondent and found obvious ambiguity, duplicated and undated schedules, and vehicles registered inconsistently between schedules, leading to the conclusion that the records were manipulated. The audit report underlying the allegations was never shared with the claimant, denying her a fair opportunity to interrogate the evidence. Other grounds of dismissal were similarly unproven.

p. 7
02

Whether the respondent accorded the claimant due process and procedural fairness

Holding

The failure to share the audit report and the specific records relied upon with the claimant contravened sections 41 and 43(2) of the Employment Act; the process was pre-determined and the offer to resign in lieu was coercive.

Reasoning

Procedural fairness under Kenyan law requires informing the employee of the charges, a proper opportunity to prepare and be heard, and consideration of representations before dismissal. Here the audit report was not shared with the claimant and she was only privy to general allegations. The disciplinary hearing also did not comply with the respondent's own human resource manual, and the meeting of 23rd October 2017 was primarily aimed at coercing a resignation.

p. 7
03

Whether the claimant's petition to the Permanent Secretary, Ministry of Labour could lawfully ground dismissal

Holding

The escalation of her concerns to the PS Labour was made with good foundation and responsibility and could not be punished; dismissal for such a complaint is prohibited by section 46(h) of the Employment Act.

Reasoning

The audit did not stop because of the petition, it proceeded and the claimant was nonetheless found at fault. The court found the petition was made with good foundation, and applying section 46(h) which forbids dismissal for initiating a complaint against the employer except where it is irresponsible and without foundation, the claimant could not be sanctioned for it.

p. 8
04

Whether reinstatement should issue as the primary remedy

Holding

Reinstatement was declined as impracticable given the loss of trust, the seniority of the claimant and the hostile work environment following disciplinary proceedings before top management.

Reasoning

Reinstatement is discretionary and reserved for exceptional circumstances under section 49(4) of the Employment Act. The claimant did not lead evidence demonstrating that trust and confidence had not been lost or that reinstatement was the most practical remedy. Having been investigated by and placed before the executive committee comprising the CEO and top managers, and having declined an offered resignation, returning her would place her back into a hostile work environment.

p. 8

Legal principles established

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  • Summary dismissal for gross misconduct should only issue where the employer takes the employee through due process and both procedural and substantive fairness are ensured
  • Reinstatement is a discretionary remedy granted only in exceptional circumstances, guided by section 49(4) of the Employment Act
  • An employer may not lawfully dismiss an employee for initiating or proposing a complaint against the employer unless it is irresponsible or without foundation

Court orders

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  1. 1.Declaration that the summary dismissal of the claimant was unfair and the letter of summary dismissal dated 16th October, 2017 is set aside
  2. 2.Award of compensation at Ksh.4,916,480.70
  3. 3.Award of notice pay at Ksh.1,475,052.21
  4. 4.Payment of the dues (b) and (c) within 30 days after which they shall attract interest at court rates
  5. 5.The claimant is awarded costs of the suit

Authorities

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Legislation

  • Employment Act, 2007section 35
  • Employment Act, 2007section 41
  • Employment Act, 2007section 43(2)
  • Employment Act, 2007section 44(3)
  • Employment Act, 2007section 44(4)(g)
  • Employment Act, 2007section 45(2)
  • Employment Act, 2007section 46(h)
  • Employment Act, 2007section 49
  • Employment Act, 2007section 49(4)
  • Leadership and Integrity Act
  • Public Servant's Code of Ethics

Cases cited (10)

  • Anthony Mkala Chitavi versus Malindi Water & Sewerage Company Ltd
    [2013] eKLR
  • Mary Chemweno Kiptui versus Kenya Pipeline Company Limited
    [2014] eKLR
  • Paul Wachiuri Ndonga versus Keroche Breweries Limited
    [2018] eKLR
  • Standard Group Limited versus Jenny Luesby
    [2018] eKLR
  • Joseph Omollo versus Board Management Kisumu Boys High School
    [2016] eKLR
  • BIFU versus Cooperative Bank Limited
    [2015] eKLR
  • CMC Aviation Limited versus Captain Mohammed Noor
    Civil Appeal No. 199 of 2013
  • Kenya Airways Limited versus Aviation & Allied Workers Union Kenya & 3 Others
    [2014] eKLR
  • Kenya Airways Limited versus Alex Wainaina Mbugua
    [2019] eKLR
  • Olive Mwihaki Mugenda & Another versus Okiya Omtata Okoiti & 4 others
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations claims (Constitution of Kenya, Article 162(2) as read with the Employment Act, 2007)

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, "Caroline Wanjiru Karori v Board of Trustees, National Social Security Fund (NSSF) [2019] KEELRC 377 (KLR)", Case Analysis (2019). Cause No. 439 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/377/eng@2019-10-24

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