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ELRCDismissedNot stated in the judgment as extracted (Memorandum of Claim dated 4th December 2015)· [2019] KEELRC 1552 (KLR)

Kenya County Government Workers Union v Nairobi County Public Service Board [2019] KEELRC 1552 (KLR)

Employment and Labour Relations Court
6 May 2019
MOMaureen Onyango
3,462 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The Employment Court dismissed a union challenge to sackings over fake certificates, confirming Kenyan employers can fire before criminal cases end if they follow fair procedure.

What this practically means

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Executive summary

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The Kenya County Government Workers' Union sued the Nairobi County Public Service Board (the Public Service Commission having been discharged as an unnecessary party) on behalf of two grievants, Beatrice Ekesa Namulanda and Michael Onyango Ochoro, whose services with Nairobi City County were terminated after they were charged with forgery of academic certificates presented during a PWC forensic staff headcount. The Union contended that the terminations violated CBA Rule 30(b), which required suspension pending conclusion of criminal proceedings, that the grievants were denied fair disciplinary process, and sought reinstatement with arrears and 12 months' compensation. The Respondent maintained that due process under Sections 41 and 43 of the Employment Act was followed, that KNEC confirmed the certificates were forged, and that acquittal in criminal cases did not absolve the grievants given the different standard of proof. Both grievants testified; the Respondent called no witnesses. Maureen Onyango J framed two issues: whether the terminations were fair and whether the reliefs were due. She held the respondent complied with Section 41, that the grievants, having not denied the charges, were properly dismissed for submitting fake certificates, and that the later acquittals did not affect the terminations. She further found, sua sponte, that the claim filed on 7th December 2015 was outside the three-year limitation period under Section 90 of the Employment Act. The claim was dismissed with no orders for costs on 6th May 2019.

Key legal issues

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01

Procedural fairness of the terminations

Holding

The respondent complied with Section 41 of the Employment Act - show cause notices were issued, disciplinary hearing convened and right of appeal exercised

Reasoning

Both grievants were issued show cause notices which also suspended them. Beatrice was invited to a disciplinary hearing by letter dated 30th August 2012 which she confirmed receiving; Michael denied receiving an invitation. Both were advised of the right of appeal to the Secretary, Public Service Commission within 42 days and both exercised it. The court concluded the Section 41 requirements were met.

p. 4
02

Substantive validity of the reason for termination

Holding

The grievants did not deny presenting fake certificates, so the reason for termination was valid

Reasoning

Neither grievant denied in pleadings or evidence that they presented fake academic certificates; they only dwelt on procedure. KNEC's witness in the criminal proceedings confirmed the certificates were not from the Council. The subsequent acquittals came after termination and did not affect the decision to terminate.

p. 4
03

Limitation of actions

Holding

The claim, filed 7th December 2015 against terminations of 2012, was outside the three-year limitation period under Section 90 of the Employment Act

Reasoning

The court raised this factor sua sponte, noting it was not raised by either party. Beatrice's termination was stated as 2nd July 2012 and Michael's as 20th September 2012. Even had unfairness been proved, the claim would collapse as statute barred.

p. 5

Legal principles established

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  • Fair termination requires both proof of the reason for termination and proof of a valid procedure
  • Failure to deny charges in pleadings or evidence permits the court to conclude the charges were true
  • Criminal acquittal after termination does not invalidate a termination already effected; the criminal judgments did not affect the decision to terminate
  • Employment claims not filed within the three-year limitation period under Section 90 of the Employment Act are statute barred

Court orders

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  1. 1.The claim is dismissed
  2. 2.No orders for costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(c)
  • Constitution of Kenya, 2010Article 236(b)
  • Employment ActSection 41(1)
  • Employment ActSection 43
  • Employment ActSection 47(5)
  • Employment ActSection 90
  • Labour Institutions Act 2007Section 15(c)
  • Public Service Commission (Local Authority Officers') Regulations 2007Section 32(1)
  • Registered Collective Bargaining Agreement (CBA) of the defunct City Council of NairobiRule 30(b), 30(c), 30(d)
  • Industrial Relations Charter of 1984Not specified

Cases cited (3)

  • Mary Chemwono Kiptui v Kenya Pipeline Company Limited
    Cause 435 of 2013
  • Kenya Plantation & Agricultural Workers Union v Sotik Highlands Tea Estate Limited
    [2016] eKLR
  • Benson Rollano Wemali v National Environment Management Authority (NEMA)
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Labour Institutions Act (trade dispute referred after conciliation under Article 159(2)(c) of the Constitution)

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, "Kenya County Government Workers Union v Nairobi County Public Service Board [2019] KEELRC 1552 (KLR)", Case Analysis (2019). Not stated in the judgment as extracted (Memorandum of Claim dated 4th December 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1552/eng@2019-05-06

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