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ELRCPartially AllowedPetition (Amended Petition filed 27th February 2017) - number not stated in the excerpt· [2019] KEELRC 783 (KLR)

Joseph Nyandiko Nyanchama v Kenya Pipeline Company Limited [2019] KEELRC 783 (KLR)

Employment and Labour Relations Court
17 September 2019
HWHellen Wasilwa
4,320 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya Pipeline unfairly dismissed a senior auditor based on suspicion alone, and the court ordered his reinstatement with back pay and costs.

What this practically means

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Executive summary

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The Petitioner, employed by Kenya Pipeline Company Limited as Accounts Assistant III in 1999 and promoted to Senior Internal Auditor, was suspended by letter dated 4th May 2016 on allegations of leaking sensitive tender information to external parties, and summarily dismissed by letter dated 11th November 2016 for breach of the Respondent's Staff Rules and Regulations. He petitioned the Employment and Labour Relations Court seeking declarations of unconstitutionality, certiorari to quash the suspension and termination letters, reinstatement, injunctions (including against publication and eviction from staff housing), compensation and aggravated damages. The Respondent maintained that the dismissal was for gross misconduct under Clause 8.5.5 of its Staff Rules, that due process was followed, and that publication issues were the subject of separate proceedings. Framing three issues - valid reasons, due process, and remedies - the court found that the Respondent merely suspected the Petitioner because he supervised the audit whose contents leaked, and that suspicion fell below the standard of proof required. On due process, the court noted that the Respondent had advertised the Petitioner's post while he was still in office and on leave, evidencing predetermination; it also found a breach of the Petitioner's right to sufficient time and materials to respond, given the 48-hour deadline and the unanswered requests for the investigation report and Staff Rules. The termination was held unfair and unjustified, breaching Articles 41, 47 and 50(1) of the Constitution. The court ordered reinstatement with back pay from the date of suspension, and awarded the Petitioner costs of the Petition with interest from the date of judgment. Judgment dated and delivered 17th September 2019 by Lady Justice Hellen Wasilwa.

Key legal issues

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01

Validity of the reasons for dismissal

Holding

The Respondent failed to prove that the Petitioner leaked confidential information; his role as audit supervisor only raised suspicion.

Reasoning

The dismissal letter alleged breach of Staff Rules 8.5.5, 2.8.1.9 and 2.8.1.10 for leaking information to a blogger. The court found the Respondent pinned the Petitioner merely because he supervised the audit that produced the leaked material. The Petitioner was not the author of the audit, and no evidence linked him to the leak. That fell below the standard of proof required for an allegation of such magnitude.

p. 5
02

Due process before dismissal

Holding

The Petitioner was denied a fair hearing: the position was advertised while he was still in office, he was given only 48 hours to respond, and his requests for documents and an investigation report were ignored.

Reasoning

The court found the pre-suspension advertisement showed a predetermined intent to remove the Petitioner. His request for an extension and for the investigation report and Staff Rules went unanswered, contrary to Articles 47 and 50 and section 4(3)(a) and (g) of the Fair Administrative Actions Act. The disciplinary process was therefore fatally flawed and the termination unfair and unjustified.

p. 6
03

Remedies

Holding

Reinstatement with back pay from the date of suspension, plus costs and interest, was the adequate remedy.

Reasoning

Having found the termination unfair and in breach of Articles 41, 47 and 50, the court held that the Petitioner had established his claim and that only reinstatement with back pay would adequately compensate him. No separate award of damages was made.

p. 6

Legal principles established

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  • Suspicion alone cannot sustain a dismissal; the employer must prove that the employee was responsible for the alleged misconduct.
  • A fair hearing in a disciplinary process includes sufficient time to prepare and access to the documents and materials to be relied upon, as protected by Articles 47 and 50 of the Constitution and section 4(3) of the Fair Administrative Actions Act.

Court orders

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  1. 1.Reinstatement of the Petitioner to his employment and former position with back pay with effect from the time of suspension
  2. 2.The Respondent to pay costs of the Petition with interest from the date of judgment

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 24, 26, 27, 28, 35, 41, 43, 47, 50, 73
  • Employment ActSections 41, 43, 44(4)(c) and (e), 45
  • Fair Administrative Actions ActSection 4(3)(a) and (g)

Cases cited (14)

  • Ezekiel Nyangoya Okemwa Vs Kenya Marine & Fisheries Research Institute
    (2016) eKLR
  • Mary Chemweno Kiptui Vs Kenya Pipeline Company Limited
    (2014) eKLR
  • David Wanjau Muhoro Vs Ol Pejeta Ranching Limited
    (2014) eKLR
  • Francis Titus Mwendwa Vs Kenya Pipeline Company Limited
    Petition No. 139 of 2016
  • Major Rtd Isaac Matti Ondari Vs Kenya Pipeline Company Limited
    Petition No. 141 of 2016
  • Judicial Service Commission Vs Gladys Boss Shollei & Another
  • Mc Kinley Vs B.C. TEL
    (2001) 2 S.C.R 161
  • Miriam Siwa Vs Kenya Post Office Savings Bank Limited
    (2014) eKLR
  • Attorney General Vs Anyang’ Nyong’o & Others
    (2007) 1 E. A 12
  • Jackson Butiya Vs Eastern Produce
    Cause No. 335 of 2011
  • Nampak Corrugated Wadeville Vs Khoza
    (JA14/98)(1998) ZALAC 24
  • Kenya Airways Limited Vs Aviation & Allied Workers Union Kenya & 3 Others
    (2014) eKLR
  • Kenya Airways Limited Vs Alex Wanaina Mbugua
    Civil Appeal No. 107 of 2018
  • Kenya Revenue Authority Vs Menginya Salim Murgani
    (2010) eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 (petition alleging breach of Articles 10, 24, 27, 28, 35, 41, 43, 47, 50 and 73); Article 47 and the Fair Administrative Actions Act; Employment Act provisions on unfair termination

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joseph Nyandiko Nyanchama v Kenya Pipeline Company Limited [2019] KEELRC 783 (KLR)", Case Analysis (2019). Petition (Amended Petition filed 27th February 2017) - number not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/783/eng@2019-09-17

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