Charles Gichia Boro & another v Nairobi City County [2019] KEELRC 1148 (KLR)
The bottom line
#Two Nairobi County askaris fired after a TV bribery scandal won over Kshs.880,000 because the county couldn't prove it gave them a fair hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent had a valid reason for the termination (substantive fairness)
Yes - the Claimants were captured on K24 television beating, manhandling and soliciting bribes from members of the public, and admitted being caught on camera, amounting to gross misconduct
The Respondent alleged the Claimants were filmed by K24 television on 20th May 2013 beating, mishandling and soliciting bribes from members of the public. The court found the Claimants admitted being caught on camera, and therefore held that the Respondent had a valid reason related to their conduct under Section 45(2) of the Employment Act.
Whether the termination followed fair procedure under Section 41 of the Employment Act
No - the dismissal was procedurally unfair because the Respondent did not prove that the Claimants were accorded a hearing as required by Section 41
Although the Respondent's documents and witness statement referred to a disciplinary hearing before the Human Resource Management Advisory Committee on 22nd June 2013, the witness who prepared the statement did not testify as the Respondent was absent at the hearing. No minutes or other valid evidence of the hearing were adduced, and the dismissal letters did not refer to the hearing or the reasons for termination, so the Respondent failed to discharge the burden under Sections 41 and 45 of the Employment Act.
Whether the Claimants were entitled to salary during the suspension period
Yes - having found the dismissals unfair, the Claimants were entitled to salary withheld during suspension, calculated for 7 days of July, August and 3 days of September 2013
The suspension letter provided for suspension without pay under clause 30(a) of the Collective Bargaining Agreement. The Claimants were on suspension from 23rd July 2013 to 2nd September 2013. Since the dismissals were found unfair, the court held the Claimants entitled to the withheld salary for that period.
What remedies were appropriate for the unfair termination
One month's salary in lieu of notice, withheld suspension salary, and compensation equivalent to 10 months' salary for each Claimant, considering their length of service and the reasons for dismissal
Relying on Section 45 of the Employment Act and the Claimants' long service (from 1987 and 1991 respectively) as well as the reasons for dismissal, the court awarded 10 months' salary as compensation, plus one month's notice pay, and held the Claimants entitled to costs and interest.
Legal principles established
#- For a termination to be fair there must be both substantive justification and procedural fairness, and the employer bears the burden of proving both under Section 45(2) of the Employment Act
- An employer asserting that a disciplinary hearing was conducted must prove it with evidence such as minutes of the hearing; bare assertions do not satisfy Section 41 of the Employment Act
Court orders
#- 1.Payment of one month's salary in lieu of notice: Kshs.37,115 to the 1st Claimant and Kshs.34,165 to the 2nd Claimant
- 2.Payment of withheld salary during suspension: Kshs.51,390 to the 1st Claimant and Kshs.47,305.40 to the 2nd Claimant
- 3.Payment of general damages for wrongful dismissal equivalent to 10 months' salary: Kshs.371,150 to the 1st Claimant and Kshs.341,650 to the 2nd Claimant
- 4.Total awards: Kshs.459,655.00 (1st Claimant) and Kshs.423,120.40 (2nd Claimant)
- 5.Claimants awarded costs of the suit
- 6.Interest on the decretal sum from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over wrongful/unfair termination claims under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Peterson Karianjahi & another v Nairobi City County [2019] KEELRC 342 (KLR)[2019] KEELRC 342 (KLR)31 Oct 2019
Cite this brief
#Cite this brief
Caselaw, "Charles Gichia Boro & another v Nairobi City County [2019] KEELRC 1148 (KLR)", Case Analysis (2019). Cause No 376 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1148/eng@2019-07-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.