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ELRCPartially AllowedCause No 1956 of 2013· [2019] KEELRC 2405 (KLR)

Isaac W. Wekesa v Kenya Forest Service [2019] KEELRC 2405 (KLR)

Employment and Labour Relations Court
31 January 2019
OMONESMUS N. MAKAU
2,455 words in judgment
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The bottom line

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Kenya's Employment Court ruled Kenya Forest Service unfairly dismissed an employee by enhancing his disciplinary sentence without hearing him, awarding over Kshs.650,000.

What this practically means

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Executive summary

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The claimant, formerly a Kenya Forests employee transferred to the respondent parastatal and confirmed as Inspector Forest Guard in March 2011, was interdicted in May 2011 over allegations that during a charcoal operation his team beat members of the public and robbed them of Kshs.139,000 and nine mobile phones. After an Orderly Room/Disciplinary Committee process concluded on 13.9.2011 with a guilty verdict, a Kshs.20,000 fine, lifting of interdiction and transfer to Turkana, which the claimant accepted, the respondent's Board of Directors reviewed the case and by letter dated 20.2.2012 dismissed him summarily with effect from 15.12.2011 for gross misconduct. His appeal was dismissed without a hearing. The court framed two issues: whether the dismissal was unfair and unlawful, and whether the reliefs should be granted. It held that a valid reason existed because the claimant accepted the guilty verdict, but that the procedure was unfair: under the respondent's Disciplinary Code 2009, revision had to occur within 30 days and could not enhance sentence without a hearing, yet the Board's out-of-time, ex parte review enhanced the sentence to dismissal contrary to section 41 of the Employment Act and natural justice. The termination was declared unfair. Reinstatement was refused as barred by section 12(3) of the ELRC Act, but the claimant was awarded notice pay of Kshs.42,450, 12 months' compensation of Kshs.509,000 and interdiction salary arrears of Kshs.106,125, totaling Kshs.657,975, subject to statutory deductions, with costs and interest. The claim for salary to retirement age was dismissed and gratuity left to the parties under the HR manuals.

Key legal issues

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01

Whether there was a valid reason for dismissal

Holding

The respondent proved a valid reason on a balance of probability because the claimant accepted the guilty verdict of the Disciplinary Committee

Reasoning

The Disciplinary Committee found the claimant guilty of taking bribes and failing to restrain juniors from beating members of the public, sentenced him to a fine, lifted his interdiction and transferred him to Turkana. The claimant accepted the verdict by his letter dated 10.10.2011 and reported to the new station, which the court treated as an acknowledgment of guilt, satisfying the valid-reason limb of section 45(2).

p. 3
02

Whether the procedure followed in dismissing the claimant was fair

Holding

The dismissal procedure was unfair because the Board of Directors enhanced the sentence on review conducted outside the 30-day period and without hearing the claimant, contrary to section 41 of the Employment Act, natural justice and paragraphs 7 and 12 of the Disciplinary Code 2009

Reasoning

Paragraph 12 of the Disciplinary Code allows revision only within 30 days of closure of the original proceedings and only to a lower sentence; paragraph 7(5) requires a hearing before enhancement. The original proceedings closed on 13.9.2011 and the revision was communicated on 20.2.2012 (backdated to 15.12.2011), well outside the limitation. The enhancement was done by the Board of Directors without any cited enabling provision and without hearing the claimant on his appeal.

p. 3
03

Whether the reliefs sought should be granted

Holding

Declaration of unfair termination granted; reinstatement refused as time-barred; notice pay, 12 months' compensation and interdiction salary arrears awarded; future salary claim and gratuity disposed of as stated

Reasoning

Following the finding of unfair termination, the court invoked section 49(1) of the Employment Act to award one month's notice pay and 12 months' compensation, considering the claimant's long service of over 10 years and the fact that he had not secured other employment since 2012. Reinstatement was statutorily barred by section 12(3) of the ELRC Act after three years from separation.

p. 3

Legal principles established

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  • Under section 45(2) of the Employment Act, termination is unfair unless the employer proves a valid and fair reason and a fair procedure.
  • A review/revision of disciplinary proceedings must be done within 30 days of the close of the original proceedings and cannot yield an enhanced sentence unless the employee is first accorded a hearing.

Court orders

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  1. 1.Declaration that the termination of the claimant was unfair and contrary to the law of employment
  2. 2.Award of one month salary in lieu of notice (Kshs.42,450)
  3. 3.Award of 12 months' salary compensation for unfair dismissal (Kshs.509,000)
  4. 4.Award of salary arrears for half pay during interdiction (Kshs.106,125)
  5. 5.Total judgment of Kshs.657,975 subject to statutory deductions
  6. 6.Costs of the suit to the claimant plus interest from the date of the judgment
  7. 7.Dismissal of the claim for salary from March 2012 to retirement age of 60 years
  8. 8.Gratuity left to the parties to deal with as provided by the HR Manuals and scheme rules

Authorities

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Legislation

  • Employment Actsection 45(2)
  • Employment Actsection 41
  • Employment Actsection 49(1)
  • ELRC Actsection 12(3)
  • Respondent's Disciplinary Code 2009paragraphs 7(4), 7(5) and 12(1)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and the ELRC Act (section 12(3), section 45, section 41 and section 49(1) of the Employment Act invoked)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Isaac W. Wekesa v Kenya Forest Service [2019] KEELRC 2405 (KLR)", Case Analysis (2019). Cause No 1956 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2405/eng@2019-01-31

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