Anthony Mwangi Irungu v Registered Trustees of the Agricultural Society of Kenya [2019] KEELRC 670 (KLR)
The bottom line
#A Kenyan court upheld an auditor's dismissal for poor performance but ordered his employer to pay Kshs. 391,500 for exceeding its own disciplinary rules and unpaid leave.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent had a valid and fair reason for the dismissal
Yes - negligent or careless performance of work, under Section 44(4)(c) of the Employment Act and the Respondent's Code of Regulations; but two of the nine charges (confidential information and malicious sentiments) were unsupported
The claimant admitted preparing a substandard Eldoret audit report and apologised in writing. His defence before the committee portrayed him as an incompetent Internal Auditor. However, the court found no merits in the allegations of inability to manage confidential information and spreading malicious sentiments, as no witnesses supported them.
Whether fair procedure under section 41 of the Employment Act was followed
Yes - the claimant was given show-cause letters, nine charges, a written defence opportunity and an oral hearing before the Staff & Finance Committee
Section 41 requires explanation of reasons and hearing of representations. The claimant was severally given opportunity to explain his performance in writing, served with nine charges on 30.7.2014, and heard orally on 11.8.2014. As a senior officer he was presumed aware of his rights and never protested being denied accompaniment by a fellow employee.
Whether the claimant was entitled to the half salary withheld during interdiction
Entitled to the half salary for the period beyond three months only
Clause 3.5.5(2) of the Respondent's Disciplinary and Grievance Handling Procedures, part of the contract, limits interdiction to three months. Investigation and the disciplinary hearing concluded before expiry of that period, so extending the interdiction beyond three months was unjustified, entitling the claimant to half salary for 19.8.2014 to 19.11.2014.
Entitlement to unpaid leave days
4 leave days awarded as the respondent admitted omitting them
The respondent admitted in its letter dated 05/12/2014 that it erroneously tabulated the claimant's leave days as 27 instead of 31 and promised to pay. The court awarded 4 days computed on basic pay of Kshs.157,300. The leave travelling allowance claim failed as he never travelled for leave.
Legal principles established
#- Under section 45 of the Employment Act, termination is unfair if the ground is not valid and fair or if fair procedure was not followed; the burden of proving unfair termination lies with the employee under section 47(5)
- Extending an employee's interdiction on half pay beyond the maximum period prescribed by the employer's own disciplinary procedures, which form part of the contract, is a breach entitling the employee to the withheld half salary for the excess period
Court orders
#- 1.Judgment entered for the claimant in the sum of Kshs. 391,500, being half salary for 3 months (Kshs. 367,300) and 4 leave days (Kshs. 24,200)
- 2.The award is subject to statutory deduction but in addition to costs plus interest at court rates from the date of filing the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (original claim for unfair termination and terminal benefits)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anthony Mwangi Irungu v Registered Trustees of the Agricultural Society of Kenya [2019] KEELRC 670 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/670/eng@2019-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.