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ELRCPartially AllowedCause No 82 of 2017· [2019] KEELRC 793 (KLR)

Patrick Lumumba Lumula v Board of Management Eregi Teachers Training College [2019] KEELRC 793 (KLR)

Employment and Labour Relations Court of Kenya
26 September 2019
MNMathews N. Nduma
3,489 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a security officer's forced 'retirement in public interest' was unfair, awarding him over Kshs. 1.29 million because his employer couldn't prove valid reasons or a fair process.

What this practically means

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Executive summary

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The claimant, employed as a security guard by the respondent college from 27 June 2006, was appointed acting security officer in-charge on 20 November 2006 without monetary benefit. After a warning letter from the Finance and Administrative Officer in February 2014 and a suspension on vague allegations of mistreating staff, insubordination and barring persons from the college, he appeared before the Board of Management on 11 March 2014 and was retired in public interest on 16 March 2014 at age 53. He claimed the termination lacked valid reason and fair procedure, breached Articles 28, 29 and 41 of the Constitution and the CBA with KUDHEIHA, and sought compensation, service gratuity, underpayment arrears, overtime, leave and holiday dues. The respondent's sole witness, the bursar, did not attend the disciplinary hearing and could not confirm whether any complainant testified. The court held the allegations were vague and embarrassing, that refusal to accept new salary scales is not insubordination, that no public interest was proved to justify early forced retirement, and that reviving concluded charges amounted to double jeopardy - an unlawful and unfair termination contrary to sections 36, 43, 44 and 45 of the Employment Act. Compensation of ten months' salary, service gratuity, underpayment arrears of Kshs. 1,011,747 and pro rata leave were awarded, totalling Kshs. 1,299,892, with interest and costs. The overtime and holiday pay claims were dismissed for want of proof.

Key legal issues

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01

Validity of reasons for retirement in public interest

Holding

The retirement in public interest was not for a valid reason; the allegations were vague, unparticularised and the alleged public interest was never proved.

Reasoning

The court examined the suspension letters of 2009 and 2014 and found the alleged offences vague and embarrassing for lack of particulars. Refusal to accept new salary terms is not insubordination, and barring unauthorized persons was within the claimant's security mandate. The respondent proved no public interest justifying retirement at age 50, rendering the termination unlawful and unfair under sections 36, 43, 44 and 45 of the Employment Act.

p. 4
02

Fairness of procedure

Holding

The procedure was unfair: complainants were not disclosed or called, the Finance and Administrative Officer who made the allegations did not testify, and the charges revived a matter already concluded by a warning.

Reasoning

The claimant's accusers were never disclosed nor summoned to the disciplinary hearing, and RW1 did not attend it and could not say if any complainant testified. Neither the Finance and Administrative Officer nor the principal refuted the victimization testimony. The court held that reviving charges already dealt with in the 7 February 2014 warning amounted to double jeopardy, rendering the process unlawful and unfair.

p. 4
03

Underpayment for acting capacity

Holding

The claimant, though placed in job group 'C' duties as security officer in-charge, was paid at job group 'G' and was awarded arrears of the differential for 7 years and 9 months.

Reasoning

RW1 admitted the claimant was elevated to supervisor and supervised and trained ten security officers, yet the 2006 letter expressly stated the acting appointment carried no monetary gain. The court found the claimant entitled to the salary attributed to job group 'C' (Kshs. 19,934) and computed the underpayment arrears at Kshs. 1,011,747 over the 7 years and 9 months.

p. 4
04

Overtime and holiday claims

Holding

The overtime, Friday extra-hour, public holiday and Christmas day claims failed for want of proof.

Reasoning

As a supervisor in job group 'C', the claimant did not prove entitlement to overtime pay. He also failed to specify with precision the particular days worked - Fridays, holidays or Christmas - for which he was not paid. The court dismissed these claims for want of proof, applying the evidentiary burden on the party alleging the entitlement.

p. 5

Legal principles established

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  • An employee is entitled to refuse terms of employment which he considers inadequate; refusal to accept new salary scales does not constitute insubordination.
  • Vague allegations lacking particulars cannot constitute valid reasons for termination; the employer bears the burden of proving public interest justifies retirement in public interest.
  • Reviving charges already the subject of a concluded warning constitutes double jeopardy and renders termination unlawful and unfair.
  • Failure to call the makers of the allegations to the disciplinary hearing and reliance on a witness without personal knowledge leaves the employer's case uncontroverted.

Court orders

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  1. 1.Judgment entered in favour of the claimant against the respondent: 10 months' compensation of Kshs. 199,340
  2. 2.Service gratuity of Kshs. 83,722
  3. 3.Underpayments of Kshs. 1,011,747
  4. 4.Annual leave 2014 (pro rata) of Kshs. 4,983
  5. 5.Total award of Kshs. 1,299,892
  6. 6.Interest at court rates from date of filing suit in respect of gratuity, underpayments and annual leave, and from date of judgment with respect to compensation, till payment in full
  7. 7.Costs of the suit to the claimant

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 28, 29 and 41
  • Employment Act, 2007Sections 36, 43, 44 and 45
  • Employment Act, 2007Section 49(1) and (4)
  • Regulation order for terms and conditions of service in the security sectorgratuity at 18 days' salary for each completed year of service
  • Collective Bargaining Agreement between the respondent and KUDHEIHAClauses 5, 6(c) and 10(d)
Jurisdiction invoked
Employment and labour relations dispute under Article 162(2) of the Constitution (Employment and Labour Relations Court); claims founded on the Employment Act 2007 and the CBA between the respondent and KUDHEIHA

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, "Patrick Lumumba Lumula v Board of Management Eregi Teachers Training College [2019] KEELRC 793 (KLR)", Case Analysis (2019). Cause No 82 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/793/eng@2019-09-26

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