Peter Mbuthia Gitau v Kenya Revenue Authority [2019] KEELRC 919 (KLR)
The bottom line
#Kenya's employment court ruled KRA unfairly suspended and dismissed an employee by dragging out discipline beyond its own rules, awarding 12 months' salary.
What this practically means
#Executive summary
#Key legal issues
#Whether the prolonged suspension of the Claimant was lawful and fair
The suspension was unlawful and unfair; the Respondent violated its own Code of Conduct which set six months as the upper time limit for determination of suspension cases, and had to be compelled by court order to avail the Claimant a personal hearing.
Section 8.4.7 of the Respondent's Code of Conduct required suspension cases to be determined within six months. Despite the Claimant's written representation and requests for a personal hearing, no action was taken and only a court order by Abuodha J compelled the Respondent to invite him before the Disciplinary Committee. The Respondent's only explanation was that the case was complex. By this conduct, the suspension was converted into a disciplinary action devoid of due process and was therefore unlawful and unfair.
Whether the Commissioner General could lawfully constitute a Review Panel to re-open the disciplinary case
The Commissioner General overreached his mandate; Section 13.3 of the Code of Conduct only permitted him to accept the recommendation or impose a different penalty, not to constitute a Review Panel, which was therefore an illegal outfit.
Section 13.3 of the Code of Conduct provides that the Commissioner General may accept the Disciplinary Committee's recommendation or impose a different penalty within the Code. Nothing in the provision authorises a Review Panel. Moreover, the review was conducted in the Claimant's absence without notice, defeating his right to defend himself. The resultant dismissal flowed from an unlawful process.
Whether the dismissal was lawful and fair
The suspension and subsequent dismissal were unlawful and unfair, entitling the Claimant to compensation.
The process leading to dismissal was tainted by the prolonged suspension in breach of the Code of Conduct, the illegal Review Panel, and the denial of an opportunity to be heard before that Panel. Such manoeuvres cannot survive scrutiny under the constitutional dispensation. The court awarded twelve months' salary in compensation, taking into account the Claimant's long service and the Respondent's callous conduct.
Legal principles established
#- An employer cannot put an employee on prolonged suspension beyond its own prescribed time limits; undue delay converts suspension into a punishment without due process.
- Where an employer's Code of Conduct empowers the Commissioner General only to accept a disciplinary committee's recommendation or impose an alternative penalty, he has no power to constitute a Review Panel to re-open the case.
- An employee must be given an opportunity to be heard before an adverse disciplinary decision is made; a review conducted in the employee's absence violates due process.
Court orders
#- 1.A declaration that the Claimant's prolonged suspension and dismissal was unlawful and unfair (implied by the finding)
- 2.Judgment for the Claimant and against the Respondent in the sum of Kshs. 1,416,000 in compensation for wrongful dismissal (12 months' salary)
- 3.Interest on the award at court rates from the date of delivery of judgment until payment in full
- 4.The Claimant to have the costs of the case
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Mbuthia Gitau v Kenya Revenue Authority [2019] KEELRC 919 (KLR)", Case Analysis (2019). Cause No 1614 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/919/eng@2019-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.