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ELRCAllowedCause No 1836 of 2015· [2019] KEELRC 404 (KLR)

Benson Mwangi Kagunda v County Council of Nairobi [2019] KEELRC 404 (KLR)

Employment and Labour Relations Court
18 October 2019
ANAbuodha Jorum Nelson
1,864 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court ruled a county employee's dismissal unfair because the employer couldn't prove the bribery and misconduct allegations behind it.

What this practically means

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Executive summary

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The claimant, employed by the respondent in 1989 as a watchman and later promoted to city askari, was interdicted in June 2013 on allegations of soliciting and receiving a Kshs. 3,000 bribe, altering a charge sheet, releasing suspects and insubordination. He was dismissed with effect from 18th June 2013 following a disciplinary process by the County Human Resource Management Advisory Committee, and his appeals to the County Public Service Board and the Public Service Commission were disallowed. The claimant sued seeking compensation for unfair termination and unpaid terminal dues. The respondent maintained that the claimant was given an opportunity to respond to a show cause letter, that the dismissal followed an integrity testing operation, and that the claimant had a history of misconduct including a 2005 arrest for soliciting a bribe and 2011 show cause letters. The respondent's own witness conceded that an askari would not prepare charge sheets, undermining that allegation. On the bribery allegation, the court noted that the respondent called neither the complainant nor any member of the integrity team and never exhibited the photocopied notes, so the allegation was unproven. The court held that past misconduct could not be used to fill gaps in proving the reasons for this dismissal, and that a dismissal must rest on accusations in the interdiction letter the employee was called to answer. The court found the termination unfair, awarding one month's salary in lieu of notice, the half salary retained during interdiction, and eight months' salary as compensation, with costs and interest, subject to ascertainment of the claimant's exit salary for recording of final judgment at a mention on 8th January 2020.

Key legal issues

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01

Whether the respondent proved the reasons for the dismissal

Holding

The allegations of altering charge sheets and soliciting/receiving a bribe were not proved; the termination was unfair

Reasoning

The respondent's own witness conceded that an askari would not prepare charge sheets, undermining that allegation. On the bribe allegation, the respondent called neither the complainant nor any integrity team member, and did not exhibit the photocopied notes. The court also held that prior misconduct could not be used to fill gaps in the reasons pleaded for this dismissal.

p. 3
02

Whether prior disciplinary history could support the dismissal

Holding

No - the respondent could not rely on old accusations to shore up the present case

Reasoning

Although the claimant had a history of disciplinary issues, the court held that the respondent could not deploy those past facts to cure deficiencies in proving the reasons for this particular dismissal; a dismissal must be based on the accusations contained in the interdiction letter to which the employee was asked to respond.

p. 2

Legal principles established

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  • An employer must prove genuine reasons for termination to the required standard under section 43(1) of the Employment Act
  • A dismissal must rest only on the accusations in the interdiction or charge letter the employee was called upon to answer

Court orders

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  1. 1.One month's salary in lieu of notice
  2. 2.Half salary retained for the period of interdiction
  3. 3.Eight months' salary as compensation for unfair termination
  4. 4.Costs of the suit to the claimant
  5. 5.The claimant's exit salary to be ascertained by the parties and filed in court to enable the court record a final judgment
  6. 6.Mention on 8th January 2020 before any Judge in Nairobi for recording of final orders
  7. 7.Interest at court rates on the awards from date of judgment until payment in full, subject to taxes and statutory deductions

Authorities

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Legislation

  • Employment Actsection 43(1)
  • Criminal Procedure Codesection 87
  • County Government Act
Jurisdiction invoked
Employment and labour relations jurisdiction of the Employment and Labour Relations Court (Cause filed under the Employment Act)

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, "Benson Mwangi Kagunda v County Council of Nairobi [2019] KEELRC 404 (KLR)", Case Analysis (2019). Cause No 1836 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/404/eng@2019-10-18

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