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ELRCDismissedCause No 1739 of 2015· [2019] KEELRC 1633 (KLR)

Joshua Rodney Marimba v Kenya Revenue Authority [2019] KEELRC 1633 (KLR)

Employment and Labour Relations Court
24 May 2019
4,852 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court declared a KRA dismissal procedurally unfair but awarded the ex-employee nothing, because he waited too long to ask for reinstatement.

What this practically means

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Executive summary

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The claimant, a Kenya Revenue Authority Market Surveillance Officer, sued alleging that his dismissal on 30.6.2015 after disciplinary proceedings was unfair and unlawful. He sought a declaration of unfairness, reinstatement, salary from suspension, damages for loss of credit and integrity, and interest. The respondent admitted the employment relationship but maintained the dismissal was for gross misconduct after a fair procedure. The respondent called no witnesses. The court found that the specific allegations of soliciting bribes of Kshs.9,000 and Kshs.20,000 from Gilgil traders were not proved - one trader swore an affidavit denying solicitation, no police complaint or statement was recorded, no CCTV footage was produced, and the burden of proof lay on the employer. Nevertheless, the claimant's conduct in being left alone at the premises breached work procedures and justified the employer's honest loss of confidence under sections 43 and 45 of the Employment Act. On procedure, however, the court found the dismissal unfair: the disciplinary committee chairman came from the department where the matter arose and was conflicted, the quorum and the Commissioner General's directive that all Commissioners attend were breached, the claimant was denied the right to face his accusers, and the process was delayed over a year. A declaration of unfair procedure issued, but all substantive reliefs were refused - reinstatement was time-barred under section 12(3)(vii) of the ELRC Act, compensation was not pleaded, salary had been paid, and damages lacked merit. The suit was dismissed with no costs.

Key legal issues

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01

Whether the reason for termination (gross misconduct/loss of confidence) was valid and fair

Holding

Yes - although the specific allegations of soliciting bribes were not proved, the claimant's conduct in breaching work procedures by being left alone with traders justified the employer's honest belief and loss of confidence

Reasoning

The court found the evidence insufficient to prove solicitation of bribes from either trader: Ratanya denied it by affidavit, no police complaint was recorded, and no CCTV was produced. However, the claimant was left behind at the supermarket contrary to the requirement to work in pairs, breaching the code of conduct and creating opportunity for bribery or false accusation. Under section 43 of the Employment Act, the employer's honest belief suffices.

p. 4
02

Whether a fair procedure was followed before dismissal

Holding

No - the disciplinary committee was improperly constituted and conflicted, quorum was breached, and the claimant was denied the right to face his accusers

Reasoning

The chairman came from the department where the matter arose, contrary to the Disciplinary Committee Rules of Business. Only 4 members including one Commissioner sat, breaching the quorum of 5 and the Commissioner General's 17.4.2008 memo requiring all Commissioners to attend. The claimant was not allowed to meet his accusers in a quasi-judicial process, and the proceedings were delayed over a year, all rendering the dismissal procedurally unfair under section 45.

p. 5
03

Whether the reliefs sought (declaration, reinstatement, salary, damages) should issue

Holding

Declaration of unfairness granted but all substantive reliefs refused

Reasoning

Reinstatement was barred by the three-year limitation in section 12(3)(vii) of the ELRC Act; compensation was not pleaded; the salary claim failed because no reinstatement was ordered and salary had been paid; damages for loss of credit failed because the claimant's own conduct breached work procedures. The suit was therefore dismissed with no costs.

p. 6

Legal principles established

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  • Termination is unfair under section 45 of the Employment Act if the employer fails to prove valid and fair reasons and a fair procedure
  • An employee in a quasi-judicial disciplinary process is entitled to face his accusers and test their evidence through cross-examination; an improperly constituted committee renders the process unfair
  • The burden of proving alleged misconduct lies with the employer
  • A chairperson of a disciplinary committee drawn from the department where the matter arose is conflicted, breaching the employer's own rules
  • Inordinate delay in finalizing disciplinary proceedings renders the procedure unfair

Court orders

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  1. 1.Declaration that the suspension, disciplinary proceedings and ultimate dismissal of the claimant was unfair
  2. 2.Dismissal of the suit with no costs

Authorities

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Legislation

  • Employment Actsections 43, 44(4), 45, 49(1)
  • Employment and Labour Relations Court Actsection 12(3)(vii)
  • KRA Disciplinary Committee Rules of Businessparagraphs 2, 4, 9, 3.2, 6
  • KRA Code of Conductrules 6.2.5.4, 6.2.6.9, section 7, paragraph 7.9, part 13
  • Rules and Regulations Governing Discipline and Grievances (KRA)section 8.4.7

Cases cited (3)

  • Gibson D. Mwanjala Vs Kenya Revenue Authority
  • Judicial Service Commission Vs Gladys Boss Shollei & Another
    [2014] eKLR
  • Menginya Salimi Murgani Vs Kenya Revenue Authority
    [2006] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the ELRC Act (s.12(3)(vii) referenced regarding reinstatement)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Joshua Rodney Marimba v Kenya Revenue Authority [2019] KEELRC 1633 (KLR)", Case Analysis (2019). Cause No 1739 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1633/eng@2019-05-24

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