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ELRCPartially AllowedIndustrial Cause (number not stated in judgment)· [2019] KEELRC 2060 (KLR)

Alex Gichuki Gakuru v Attorney General & another [2019] KEELRC 2060 (KLR)

Employment and Labour Relations Court
8 March 2019
OMOnesmus N. Makau
2,851 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A Kenya Wildlife Service employee fired after a criminal conviction lost his wrongful dismissal claim but won over Kshs. 557,000 in unpaid dues.

What this practically means

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Executive summary

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The Claimant, employed by the 2nd Respondent (Kenya Wildlife Service) from January 2001, was suspended on nil pay in August 2003 after being arrested and charged with theft by servant. Following his conviction and sentence, he was summarily dismissed with effect from 24th November 2004 by letter dated 27th December 2006. His appeal later succeeded and he was acquitted on 24th July 2009, but he was neither reinstated nor paid terminal dues. He sued seeking a declaration of wrongful dismissal, reinstatement, salary from August 2003, pension contributions, severance and terminal dues. The claim against the 1st Respondent was withdrawn. The court framed two issues: whether the dismissal was wrongful, and entitlement to reliefs. Applying the repealed Employment Act and the Rift Valley Textiles decision, the court held that under the repealed law the employer owed no duty to hear the employee unless contractually provided, and that the conviction constituted justifiable reason for summary dismissal, particularly as the Claimant never notified the employer of his pending appeal. The dismissal was therefore not wrongful, and the declaration and reinstatement were refused. However, the court found the Claimant entitled to admitted dues: two months' salary in lieu of notice, salary from August 2003 to the actual dismissal date of 27th December 2006, and leave pay for 2003 only, totaling Kshs.557,831.30, subject to statutory deductions and clearance with the employer. Claims for public holidays and trial expenses failed. The Claimant received costs plus interest from the date of filing suit.

Key legal issues

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01

Whether the Claimant was wrongfully dismissed

Holding

Dismissal was for a valid and justifiable reason and not wrongful; natural justice did not apply under the repealed Employment Act absent contractual provision

Reasoning

The suspension letter stated the suspension would subsist until the outcome of the criminal case. The Claimant was convicted and sentenced, and did not inform the employer of his appeal, so the employer reasonably concluded the case was over. Under the repealed Act no hearing was required unless contractually provided. The dismissal was therefore justified and the Claimant failed to discharge the burden of proof.

p. 5
02

Whether the Claimant is entitled to the reliefs sought

Holding

Partially: notice pay, salary from suspension to actual dismissal, and leave for 2003 awarded; declaration, reinstatement, public holidays and trial expenses refused

Reasoning

Although the dismissal was lawful, the Respondent admitted owing terminal dues, which were payable upon clearance. Salary was due from suspension to the actual dismissal date of 27.12.2006 notwithstanding the backdating. Leave for 2003 was uncontradicted. Other heads failed for lack of proof or because they were inappropriate.

p. 5

Legal principles established

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  • Under the repealed Employment Act, an employer was under no obligation to accord an employee a hearing before termination unless provided for in the contract, HR policy or CBA
  • Conviction by a trial court was justifiable reason for summary dismissal where the employer was unaware of a pending appeal

Court orders

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  1. 1.Judgment entered for the Claimant against the 2nd Respondent for 2 months salary in lieu of notice of Kshs.22,279.00
  2. 2.Salary from August 2003 to 27.12.2006 (Kshs 11139.5 x 40 months) of Kshs.445,580.00
  3. 3.21 leave days for 2003 (21/26 x Kshs.11139.50) of Kshs.89,972.30
  4. 4.Total award of Kshs.557,831.30 subject to statutory deductions and to the Claimant clearing with the 2nd Respondent
  5. 5.Costs of the suit to the Claimant plus interest at court rates from the date of filing the suit

Authorities

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Legislation

  • Employment Act, Cap 226 (Repealed)Section 17(g)
  • Fair Administrative Action ActSection 9

Cases cited (3)

  • Jackson Butiya vs. Eastern Produce Limited
    Industrial Cause No. 335 of 2011
  • Kenya Revenue Authority vs. Menginya Salim Murgani
    [2010] eKLR
  • Rift Valley Textiles Limited vs. Edward Onyango Oganda
    [1994] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over a claim for wrongful dismissal (referenced as an Industrial Cause under the Employment Act)

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, "Alex Gichuki Gakuru v Attorney General & another [2019] KEELRC 2060 (KLR)", Case Analysis (2019). Industrial Cause (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2060/eng@2019-03-08

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