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ELRCPartially AllowedCause No 965 of 2010· [2019] KEELRC 1856 (KLR)

David Namu Kariuki v Institute of Policy Analysis and Research [2019] KEELRC 1856 (KLR)

Employment and Labour Relations Court
10 April 2019
BOByram Ongaya
3,033 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 an employee already disciplined and warned couldn't be fired later for the same conduct without notice or a hearing.

What this practically means

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Executive summary

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The claimant, employed by the respondent as Finance and Administration Manager by letter dated 02.04.2008 on a three-year renewable contract effective 05.05.2008, was summarily dismissed by the respondent's Board on 11.12.2009 for gross misconduct. The dismissal followed earlier allegations concerning withheld signed cheques, disobedience of Board instructions and disparaging remarks, to which the claimant had responded with explanations, admissions and apologies; the Board had punished him with a warning letter dated 05.10.2009 placing him under four months' strict observation. The court framed three issues: fairness of the dismissal, the claimant's entitlement to remedies, and the respondent's counterclaim. It held that the disciplinary process over the earlier allegations had closed with the warning, exhausting the respondent's disciplinary power, and that dismissing the claimant on the same allegations before the observation period lapsed, without notice or hearing, constituted double jeopardy and was unfair both in substance and procedure under sections 41, 43, 45 and 47(5) of the Employment Act, 2007. The court awarded November 2009 salary, December salary for 11 days, leave pay, three months' notice pay, and six months' gross salary as compensation under section 49(1)(c), reduced from twelve months for mitigation. Claims for unremitted pension, ISWA contributions and salary top up failed as abandoned or unproved. The unopposed counterclaim for PAYE penalties of Kshs. 152,699.00 succeeded and was set off, leaving Kshs. 2,118,268.00 payable to the claimant by 01.06.2019, failing which interest accrues. The respondent was ordered to pay the claimant's costs of the suit; no costs were awarded on the counterclaim.

Key legal issues

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01

Whether the summary dismissal was unfair

Holding

The dismissal was unfair both in substance and procedure: the disciplinary process had closed with a warning, the four-month observation period had not lapsed, no fresh allegations existed, and no notice and hearing preceded the dismissal

Reasoning

The claimant responded to the allegations by admissions and apologies; the Board imposed a warning and placed him under four months' observation. Before that period lapsed, and without periodic reports or fresh allegations, the Board summarily dismissed him. The court found the respondent failed to prove valid reasons under sections 43 and 45 and that dismissal without notice and hearing breached section 41. Reliance on prior allegations amounted to double jeopardy.

p. 3
02

Whether the respondent's counterclaim for PAYE penalties of Kshs. 152,699.00 was established

Holding

The counterclaim was established, the claimant having filed no response or evidence, and was set off against the sum due to the claimant

Reasoning

No response to the counterclaim was filed and the claimant offered no defence or evidence. The respondent exhibited a voucher dated 19.04.2011 showing payment of PAYE penalty for June 2009 with interest of Kshs. 152,699.00. The court held the counterclaim proved and applied it as a set off, with no orders on costs.

p. 4

Legal principles established

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  • Even in cases of summary dismissal on account of gross misconduct, hearing and notification on the part of the employer are mandatory; only the notice may be shorter than contractual or statutory notice
  • Once an employer has imposed a punishment (a warning) for given allegations, its disciplinary power over those allegations is exhausted and it cannot subsequently impose another punishment for the same allegations (double jeopardy)

Court orders

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  1. 1.The respondent to pay the claimant a sum of Kshs. 2,118,268.00 by 01.06.2019 failing interest to be payable thereon at court rates from the date of filing the suit till full payment
  2. 2.The respondent to pay the claimant's costs of the suit
  3. 3.The respondent's counterclaim allowed with set off as computed in the judgment and with no orders on costs

Authorities

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Legislation

  • Employment Act, 2007section 19
  • Employment Act, 2007section 28
  • Employment Act, 2007section 35
  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 45
  • Employment Act, 2007section 47(5)
  • Employment Act, 2007section 49(1)(c)

Cases cited (1)

  • Shankar Saklani –Versus- Dhl Global Forwrading (K) Limited
    [2012] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 28, 35, 41, 43, 45, 47(5), 49(1)(c) and 19 applied)

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, "David Namu Kariuki v Institute of Policy Analysis and Research [2019] KEELRC 1856 (KLR)", Case Analysis (2019). Cause No 965 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1856/eng@2019-04-10

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