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ELRCDismissedCause No. 92 of 2017 (consolidated with the 2nd Claimant's cause)· [2019] KEELRC 2333 (KLR)

Josephat Kimutai Kemei & another v West Pokot County Service Board [2019] KEELRC 2333 (KLR)

Employment and Labour Relations Court
1 February 2019
MNM. N. Nduma
2,308 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld the summary dismissal of two county staff for payroll fraud, granting them only certificates of service.

What this practically means

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Executive summary

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Two consolidated causes by former employees of the County Government of West Pokot challenged their summary dismissals. The 1st Claimant, formerly Head of County Human Resource Management, and the 2nd Claimant, a Clerical Officer in the HR department, sought declarations that their terminations were unlawful, compensation, salary in lieu of notice, arrears, certificates of service and, for the 2nd Claimant, pension contributions and payment of underpaid wages. The Respondent alleged the 1st Claimant fraudulently paid himself Kshs 462,715, paid ghost workers including his wife, irregularly paid ESP health staff, and promoted and re-designated the 2nd Claimant on the basis of a forged letter from the Town Council of Chepareria, causing losses exceeding Kshs 12 million. The court framed four issues and, applying sections 107 and 108 of the Evidence Act with sections 43(1) and 47(5) of the Employment Act, held that the Claimants bore the primary burden of proving wrongful termination, which the Respondent's evidence rebutted. Both were found guilty of gross misconduct; condonation by the supervisor did not cleanse the 2nd Claimant's culpability. Fair procedure was followed: show cause letters, disciplinary hearings, and appeals to the Public Service Commission. All reliefs were refused except certificates of service. The judgment contains minor internal inconsistencies in the alleged loss figures.

Key legal issues

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01

Whether the dismissals were for valid reason and fair procedure

Holding

Dismissals were for valid reason (gross misconduct/fraud) and fair procedure was followed

Reasoning

The Respondent relied on sections 43(1) and 47(5) of the Employment Act. Both Claimants received show cause letters, responded, and attended disciplinary hearings where explanations were heard and rejected; both appealed to the Public Service Commission and were rejected. The court found the documentary and oral evidence showed fraudulent payroll conduct causing losses over Kshs 12 million, discharging the employer's burden.

p. 4
02

Whether the Claimants were entitled to the reliefs sought

Holding

No, except certificates of service

Reasoning

Having found gross misconduct justifying summary dismissal, the court held the Claimants were not entitled to compensation, notice pay, arrears, or pension-related claims. The only relief granted was certificates of service, which are a statutory entitlement irrespective of the manner of exit.

p. 4

Legal principles established

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  • In an unfair termination claim, the claimant bears the primary burden of showing the termination was wrongful, after which the burden shifts to the employer to demonstrate valid reason and fair procedure
  • Condonation by a supervisor does not cleanse the illegality of an employee's participation in an irregular transaction

Court orders

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  1. 1.The suits by the 1st and 2nd Claimants dismissed in their entirety
  2. 2.Both Claimants granted Certificates of Service for the correct positions and period they held with the Respondent, to be issued within 30 days

Authorities

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Legislation

  • Employment ActSection 43(1)
  • Employment ActSection 47(5)
  • Evidence Act, Cap 80 Laws of KenyaSections 107 and 108
  • Regulation of Wages (General Amendment) OrderNot specified
Jurisdiction invoked
First-instance Employment and Labour Relations Court jurisdiction (Employment Act, 2007 and Employment and Labour Relations Court Act); no specific provision invoked in the judgment

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, "Josephat Kimutai Kemei & another v West Pokot County Service Board [2019] KEELRC 2333 (KLR)", Case Analysis (2019). Cause No. 92 of 2017 (consolidated with the 2nd Claimant's cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2333/eng@2019-02-01

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