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ELRCPartially AllowedCause No 2252 of 2015· [2019] KEELRC 2023 (KLR)

Francis Kariuki Njuguna v National Construction Authority [2019] KEELRC 2023 (KLR)

Employment and Labour Relations Court
25 February 2019
2,961 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that even when an employee breaks workplace rules, an employer must still follow fair disciplinary procedure before firing them.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent in December 2013 at a rising salary reaching KShs 453,400, was summarily dismissed on 4th December 2015 for being absent from work without official leave from 30th September to 12th November 2015. He claimed the dismissal was unlawful and unprocedural, seeking a declaration of nullity, reinstatement, salary and benefits, general damages, or alternatively special damages of KShs 7,985,765.71. The Respondent maintained there were valid grounds and that due process under its Human Resource Manual was followed, and that terminal dues of KShs 6,427,435.88 were offered but uncollected for failure to clear. The Court framed three issues: validity of reasons, due process, and remedies. On reasons, it held the Claimant breached express HR Manual provisions by proceeding on leave without approval in the prescribed form, so a valid reason existed. On process, however, the Respondent conducted no investigation and produced no investigation report, contrary to Clause 13.5 of its own Manual and the Fair Administrative Action Act; the Claimant was condemned on evidence given in his absence. The dismissal was therefore unfair and unjustified under Section 45(2) of the Employment Act. Balancing this against the Claimant's own breach, the Court awarded four months' salary as compensation (KShs 1,813,600), one month's salary in lieu of notice (KShs 453,400), and the terminal dues previously offered (KShs 6,427,435.88), totalling KShs 8,694,435, plus costs and interest from the date of judgment. Reinstatement, general damages and the itemised special damages were not granted. Judgment delivered by Hellen Wasilwa, J, on 25th February 2019.

Key legal issues

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01

Validity of the reason for termination (absence without official leave)

Holding

There was a valid reason: the Claimant breached express provisions of the HR Manual by proceeding on leave without approval in the prescribed form

Reasoning

The Respondent's Manual required leave to be applied for in a prescribed form and approved before proceeding. The Claimant admitted he proceeded on leave without approval and that his application was not returned to him. Although the Respondent knew his whereabouts, the Court found the breach of the express policy provisions constituted a valid reason warranting termination under section 45.

p. 4
02

Procedural fairness of the termination

Holding

The dismissal was unfair and unjustified because the Respondent did not follow its own disciplinary procedure (no investigation, no report) and condemned the Claimant on evidence given in his absence, contrary to the Fair Administrative Action Act and section 45(2) Employment Act

Reasoning

Clause 13.5 of the Manual required investigation and deliberation by a disciplinary committee before escalation. No investigation was done and no report was produced. The Claimant was denied an opportunity to cross-examine or respond to the evidence against him. Accordingly, the employer failed to prove termination in accordance with fair procedure.

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03

Remedies for unfair termination

Holding

Claimant awarded 4 months' salary as compensation, one month's salary in lieu of notice, plus terminal dues previously offered (KShs 6,427,435.88), total KShs 8,694,435, with costs and interest

Reasoning

The Court exercised its discretion under section 49 of the Employment Act, tempering compensation because the Claimant himself absented himself on unapproved leave. It credited the terminal dues the Respondent had offered but which the Claimant had not collected for failure to undertake clearance.

Legal principles established

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  • Under Section 45(2) of the Employment Act, a termination is unfair if the employer fails to prove a valid and fair reason and that fair procedure was followed
  • Summary dismissal for absence without leave under an employer's policy requires proof that efforts were made to trace the absent employee without success
  • Failure to follow an employer's own disciplinary procedure, including conducting an investigation, breaches the Fair Administrative Action Act and renders dismissal unfair

Court orders

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  1. 1.4 months' salary as compensation for unfair termination (4 x KShs 453,400 = KShs 1,813,600)
  2. 2.One month's salary in lieu of notice (KShs 453,400)
  3. 3.Payment of terminal dues previously offered by the Respondent totalling KShs 6,427,435.88
  4. 4.Total award of KShs 8,694,435
  5. 5.Costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment Act 2007Sections 35, 41, 45, 45(2), 49, 27(1)
  • Constitution of Kenya 2010Article 47
  • Fair Administrative Action Actnot specified

Cases cited (8)

  • Daniel Kiplagat Kipkeibut vs. SMEP Deposit Taking Micro Finance Limited
    [2016] eKLR Cause No. 213 of 2015
  • Kenya Union of Commercial Food and Allied Workers vs. Meru North Farmers Sacco Limited
    [2014] eKLR
  • Pamela Nelima Lutta vs. Mumias Sugar Company Limited
    [2017] eKLR Cause No. 293 of 2015
  • CPC Industrial Products vs. Angima
    Civil Appeal No. 197 of 1992
  • Kenfreight EA Limited vs. Benson K. Nguti
    [2016] eKLR Civil Appeal No. 31 of 2015
  • Co-operative Bank of Kenya Limited vs. Banking Insurance & Finance Union
    [2017] eKLR
  • Kenya Ports Authority vs. Fadhil Juma Kisuwa
    [2017] eKLR
  • Leonard Odindi vs. Kenya Ports Authority
    [2011] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (Sections 35, 41, 45, 49) and Article 47 of the Constitution invoked by the parties

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 Kariuki Njuguna v National Construction Authority [2019] KEELRC 2023 (KLR)", Case Analysis (2019). Cause No 2252 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2023/eng@2019-02-25

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