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ELRCPartially AllowedCause No 1625 of 2016· [2019] KEELRC 693 (KLR)

Benson Kitai Musyoka v Kenya Utalii College [2019] KEELRC 693 (KLR)

Employment and Labour Relations Court
26 September 2019
2,217 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a suspended employee 12 months' salary because his employer never completed investigations or held a disciplinary hearing before cutting his pay.

What this practically means

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Executive summary

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The Claimant, a cook employed by the Respondent from 2004 and confirmed on permanent terms in 2011, was arrested on 26th July 2013 by the Respondent's Chief Security Officer while returning excess food from an outside catering assignment at the Judiciary Training Institute, and was subsequently charged with stealing. He was suspended on half salary, but the half salary was stopped in 2014 on the alleged ground that he had absconded bail - a claim for which the Respondent produced no documentation. After his acquittal, the Respondent never lifted the suspension, completed its investigations, or conducted any disciplinary hearing. The Claimant sued for declarations that his dismissal was unlawful and unfair, a declaration of entitlement to a contract of service, Kshs. 1,601,965.50, costs and interest. The Respondent contended the separation was mutually agreed and justified by the pilferage. The court framed three issues: valid reasons, due process, and remedies. It found the investigations were never completed, that stoppage of salary midway constructively terminated the Claimant's services, and that no disciplinary hearing was ever held, contrary to sections 41, 43 and 45(2) of the Employment Act. The claim was partially allowed: back pay of Kshs. 184,429/= for the suspension period, 12 months' salary as compensation (Kshs. 316,164/=), total Kshs. 500,593/=, with costs and interest at court rates. The claims for gratuity, commuter allowance, outstanding salary and the declaration on contract of service were not granted.

Key legal issues

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01

Whether there were valid reasons to terminate the Claimant's services

Holding

No valid reasons were established as the investigations promised in the suspension letter were never completed or communicated.

Reasoning

The Claimant was suspended on allegations of theft and charged in court. He was acquitted on 16/3/2015 under Section 202 of the Criminal Procedure Code, yet the Respondent never communicated findings of any investigations or the Claimant's position after acquittal. The stoppage of half-salary without recourse to a disciplinary hearing constructively terminated his services. Section 43 of the Employment Act requires the employer to establish valid reasons, which was not done.

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02

Whether due process was followed before termination

Holding

No disciplinary hearing was ever conducted, contravening section 41 of the Employment Act.

Reasoning

Section 41 of the Employment Act 2007 envisages a full disciplinary hearing after notice to the employee, allowing him to cross-examine witnesses called against him and to call his own witnesses before a competent and fair panel. The Respondent admitted no investigations were carried out and no minutes of meetings with the Claimant were recorded. The termination was therefore procedurally unfair.

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03

Whether the termination was unfair under section 45(2) of the Employment Act

Holding

The dismissal was unfair and unjust as the employer failed to prove valid reason and fair procedure.

Reasoning

Section 45(2) places the burden on the employer to prove that the reason for termination is valid and fair, related to the employee's conduct, capacity or compatibility or based on operational requirements, and that fair procedure was followed. Having found neither valid reason nor due process, the court found for the Claimant and awarded back pay and 12 months' salary as compensation.

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Legal principles established

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  • An employer must establish valid reasons for termination, and where investigations are never completed the reasons are not established.
  • Termination without a disciplinary hearing conducted in accordance with section 41 of the Employment Act is procedurally unfair.
  • Stopping an employee's salary midway during suspension without communication amounts to constructive termination of services.

Court orders

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  1. 1.Back pay with effect from 26th July 2013 to 3rd March 2014 = 26,347/= x 7 = 184,429/=
  2. 2.12 months salary as compensation for unlawful termination = 12 x 26,347/= = 316,164/= (total award Kshs. 500,593/=)
  3. 3.Respondent to pay costs of the suit plus interest at Court rates with effect from the date of the judgment

Authorities

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Legislation

  • Employment ActSection 43
  • Employment Act 2007Section 41
  • Employment Act 2007Section 45(2)
  • Employment ActSection 49(1)
  • Public Service Code of RegulationsRegulation G.32
  • Civil Procedure CodeSection 202

Cases cited (3)

  • David Gichana Omuya v Mombasa Maize Millers Ltd
    [2014] eKLR
  • National Bank of Kenya Limited v Pipeplastic Samkolit (K) Limited & Another
    [2001] eKLR
  • Paul Billy Nyagilo v East African Portland & Cement Limited
    [2018] eKLR
Jurisdiction invoked
Employment Act, 2007 (sections 41, 43, 45(2), 49(1))

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 Kitai Musyoka v Kenya Utalii College [2019] KEELRC 693 (KLR)", Case Analysis (2019). Cause No 1625 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/693/eng@2019-09-26

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