Ernest Kibet Tormoi v Kenya Farmers Association Ltd [2019] KEELRC 1959 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the termination was procedurally fair
The termination was procedurally unfair - the employer failed to set out charges with clarity, changed figures without a fresh show cause notice, and required the claimant to verify allegations against himself
The disciplinary figures changed from Ksh.4,728,092 to Ksh.1,158,775.15 and later Ksh.1,287,955.15 without a new show cause notice. The employer, while the claimant was on suspension, had the burden of proving the allegations but required the claimant to verify documents supporting allegations against him, contrary to section 41 of the Employment Act and the audi alteram partem rule.
Whether the prolonged suspension without pay was lawful
The prolonged suspension was without basis and rationale, and denying salary while requiring twice-weekly reporting was an inhumane expectation; salary remained due to termination
The claimant was suspended for over a year, paid 60% salary for 90 days then nothing, while required to report twice weekly. The employer could not justify the length of suspension. Suspension is interim to allow investigations, and the employee has no control over the period, so salary remained payable up to termination.
Remedies justified
Accrued leave, termination benefits, unremitted funds, salary to termination, 10 months' compensation, notice pay, travel costs for two months, certificate of service and retirement benefits access were awarded
The respondent's own computations of dues were confirmed. Compensation of 10 months' gross wage was assessed considering the hardship, long unpaid suspension, age (56) and medical condition. Two months' notice pay was awarded as the respondent itself noted it as due. Travel costs for April-May 2015 were assessed at two months' salary.
Whether the counter-claim had merit
Partially allowed - overdrawn salary at Moi's Bridge of Ksh.578,482.15 allowed with interest; Embu stock shortage barred by limitation and Narok misapplied cash claim dismissed
The Embu stock shortage arose in 2006 before the claimant's re-engagement and is caught by section 90 limitation. The Moi's Bridge overdrawn salary was consistently used in all notices and the claimant admitted receiving salary advances without explaining repayment. The Narok misapplied cash claim was without basis given the claimant's unrebutted defence.
Legal principles established
#- An employer must explain to the employee the grounds for termination and give a fair chance to respond, per section 41 of the Employment Act
- Where charges are amended or figures changed, the employer must issue a new show cause notice with better particulars before proceeding to terminate
- Requiring an employee on suspension to verify allegations against himself is contrary to fair labour relations and results in unfair termination
- A prolonged suspension without a reasonable time frame is impermissible; interdiction should be interim and addressed within about three months
- Claims by an employer against an employee that arose before re-engagement are barred by limitation under section 90 of the Employment Act
Court orders
#- 1.Judgment entered for the claimant with a finding that employment terminated unfairly
- 2.13 days accrued leave and travelling allowance of Ksh.28,894.75
- 3.Termination benefits for 6 years' service of Ksh.228,036.00
- 4.Unremitted provident fund before resignation of Ksh.21,292.00
- 5.Unremitted fund to the defunct Retirement Benefits Scheme of Ksh.13,640.00
- 6.Balance of salary between April, 2014 and October, 2014 of Ksh.285,923.00
- 7.Salary due up and until 27th January, 2016 of Ksh.998,685.00
- 8.Compensation of Kshs.494,080.00
- 9.Notice pay of Ksh.98,816.00
- 10.Travelling costs of Ksh.98,816.00
- 11.The claimant to be issued with necessary letter for access to the provident fund
- 12.Certificate of service to be issued in accordance with section 51 of the Employment Act, 2007
- 13.Costs of the suit to the claimant
- 14.Counter-claim confirmed in respect of overdrawn salary (Moi's Bridge) of Ksh.578,482.15 with interest at court rates from the time due until paid in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and Article 41 of the Constitution (fair labour practices)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ernest Kibet Tormoi v Kenya Farmers Association Ltd [2019] KEELRC 1959 (KLR)", Case Analysis (2019). Cause No. 316 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1959/eng@2019-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.