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ELRCPartially AllowedPetition dated 14th November 2016, amended by Petition dated 6th March 2017· [2019] KEELRC 2002 (KLR)

Francis Mwendwa Titus v Kenya Pipeline Company Limited [2019] KEELRC 2002 (KLR)

Employment and Labour Relations Court
28 February 2019
5,236 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya Ports Authority must reinstate a dismissed auditor with full backpay because it blocked his chosen witness at the disciplinary hearing.

What this practically means

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Executive summary

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The Petitioner, an Internal Auditor employed by Kenya Ports Authority since 1st July 2003, challenged his re-designation, suspension on half pay (by letter dated 4th May 2016) and summary dismissal (letter dated 11th November 2016) following allegations that he leaked confidential company information on tenders to external parties, including a forwarded email linked to a Star Newspaper story on the Thange River clean-up. He sought declarations that the Respondent's acts were unlawful, certiorari to quash the impugned letters, reinstatement, an injunction against publication, and aggravated damages, alleging breaches of Articles 27, 47, 35, 28 and related constitutional provisions, the Employment Act and the Fair Administrative Action Act. The Respondent, through a Replying Affidavit of Managing Director Joe Sang, justified the suspension and dismissal under Clauses 8.3.4 and 8.3.5 of its Staff Rules and Regulations, relying on a private investigator's finding that the leaked email traced to the Petitioner's address, and contending that the disciplinary committee was properly constituted and observed natural justice. The court framed four issues: validity of reasons for termination, due process, constitutional breaches, and remedies. It held that the Petitioner's conduct, even if proven, amounted to misconduct rather than gross misconduct under Section 44(4)(a) of the Employment Act. Critically, the court found the Respondent breached Section 41 of the Employment Act by rejecting the Petitioner's chosen witness, Joseph Nyanchama, denying him a fair hearing and infringing Article 47. The Petition succeeded in part: the court ordered reinstatement with full backpay, with re-engagement on the same terms in default, and costs against the Respondent. Other reliefs, including damages and the injunction, were not granted in the final orders.

Key legal issues

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01

Whether the Respondent had valid reasons to terminate the Petitioner's services

Holding

The Petitioner may have committed misconduct, but not gross misconduct warranting dismissal; his conduct did not fit the definition of gross misconduct under Clause 8.3.5 of the Staff Rules or Section 44(4)(a) of the Employment Act

Reasoning

The Respondent relied on Clause 8.3.5 of the Staff Rules and Regulations, which covers wilful neglect or careless performance of work, criminal offences against the employer, and disregard of security/safety regulations. The court found that even if the Petitioner shared information with unauthorised persons, this amounted to ordinary misconduct or breach of confidentiality, not gross misconduct as defined in Section 44(4)(a) of the Employment Act, since the Petitioner's duty as an Auditor concerned work performance, not information confidentiality. Summary dismissal was therefore disproportionate to the proven conduct.

p. 6
02

Whether the Respondent followed due process before the termination

Holding

The process was unfair; the Respondent breached Section 41 of the Employment Act and the Fair Administrative Action Act by turning away the Petitioner's chosen witness, Joseph Nyanchama

Reasoning

Section 41(1) of the Employment Act entitles an employee facing termination to have another employee or shop floor union representative of his own choice present. The Respondent admitted rejecting Mr. Nyanchama because he faced similar charges, and the Petitioner did not seek an adjournment. The court held that the employer has no discretion over which employee witness may attend, so the denial breached Section 41, the right to a fair hearing, and the Fair Administrative Action Act's guarantee to call a witness of one's choice.

p. 7
03

Whether the Respondent breached the Petitioner's constitutional rights

Holding

The Petitioner's rights under Article 47 of the Constitution (fair administrative action) were infringed

Reasoning

Because the disciplinary process denied the Petitioner a fair hearing through exclusion of his chosen witness, the court found a violation of Article 47. The Respondent had argued, citing the Judicial Service Commission v Gladys Boss Shollei case, that Articles 47 and 50 do not apply to internal disciplinary proceedings, but the court nonetheless found Article 47 infringement based on the unfairness of the process. Other alleged breaches (Articles 27, 35, 28) were not separately upheld in the final analysis.

p. 7
04

What remedies should be granted

Holding

Reinstatement with backpay of all salary and allowances since the unfair dismissal, with re-engagement on the same terms in default; costs to the Petitioner

Reasoning

The court, having found the dismissal unfair and unjustified under Section 45(2) of the Employment Act, chose the statutory remedy of reinstatement with full backpay, with an alternative order of re-engagement on the same terms without loss of pay or promotions should reinstatement be impossible. The Respondent had argued that the position was filled and trust and confidence had broken down, but the court nonetheless ordered reinstatement as the primary remedy.

p. 7

Legal principles established

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  • An employer has no discretion to veto the employee's chosen fellow-employee witness at a disciplinary hearing; the right to have a representative of the employee's own choice is mandatory under Section 41 of the Employment Act
  • Denial of the employee's chosen witness breaches Section 41 of the Employment Act, the right to a fair hearing, and the Fair Administrative Action Act, and renders the termination unfair under Section 45(2)
  • Not every breach of confidentiality or misconduct amounts to gross misconduct justifying summary dismissal; the conduct must fit the statutory or contractual definition of gross misconduct

Court orders

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  1. 1.A finding that the Petitioner's termination was unfair and unjustified under Section 45(2) of the Employment Act and that his Article 47 constitutional rights were infringed
  2. 2.Reinstatement of the Petitioner to his employment with backpay of all salary and allowances since the unfair dismissal
  3. 3.In default of reinstatement, re-engagement of the Petitioner on the same terms without loss of pay or promotions
  4. 4.The Respondent to pay costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 47, 27, 10, 24, 35, 73, 28, 50 (including 50(2)(a)-(c)) and 25(c)
  • Employment Act, No. 11 of 2007Sections 41(1), 41(2), 42(1), 43, 44(3) and (4), 44(4)(a), 45(2), 47(5)
  • Fair Administrative Action Actnot specified
  • Kenya Ports Authority Staff Rules and Regulations, 2015Clauses 8.3.4, 8.3.5, 2.8.1.9, 2.8.1.10, 8.5.5

Cases cited (7)

  • Mary Chemweno Kiptui -v- Kenya Pipeline Company Limited
    [2014] eKLR
  • Attorney General & Another -Vs- Crispinus Ngayo Musundi
    (2017) eKLR
  • Me Kinley vs. BC Tel
    (2001) 2 S.C.R 161
  • Judicial Service Commission -Vs- Gladys Boss Sholei & Another
    (2014) eKLR
  • Mumo Matemu Vs Trusted Society of Human Rights
    (2013) eKLR
  • Geoffrey Mworia-Vs- Water Resources Management Authority and 2 others
    [2015] eKLR
  • Gerald Kaura Muthamia Vs. Co-Operative Bank Of Kenya Limited
    [2017] eKLR
Jurisdiction invoked
Articles 47, 27, 10, 24, 35, 73 and 28 of the Constitution of Kenya 2010, together with the Employment Act and the Fair Administrative Action Act (as invoked in the Petition)

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, "Francis Mwendwa Titus v Kenya Pipeline Company Limited [2019] KEELRC 2002 (KLR)", Case Analysis (2019). Petition dated 14th November 2016, amended by Petition dated 6th March 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2002/eng@2019-02-28

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