Ephantus Githui v Kenya Railways Staff Retirement Scheme [2019] KEELRC 2532 (KLR)
The bottom line
#Kenyan employers who fire staff without stating reasons and holding a disciplinary hearing will pay heavily, even where misconduct is suspected.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was unlawful and unfair
Yes - no reasons were given, no show cause letter issued, and no disciplinary hearing was held
Section 41(1) of the Employment Act mandates an employer to explain reasons and accord a hearing before termination on grounds of gross misconduct. The termination letter was silent on reasons. RW1 admitted no show cause letter was issued and there was no record of a disciplinary hearing. Both the statutory procedure and the Scheme's own Regulations (Clause 9.13) were breached, so the termination was unfair regardless of the alleged misconduct.
Whether the claim for defamation succeeded
No - the claim failed
Defamation requires pleaded and proved defamatory words published to third parties lowering the plaintiff's reputation. The Claimant did not specifically plead the claim nor prove the newspaper words were defamatory or lowered his reputation. The Respondent's statement that money was lost was a fact evidenced by the institution of criminal proceedings.
Whether the Claimant was entitled to the reliefs sought
Partially - salary during suspension to termination date, pay in lieu of notice, leave pay and 6 months' compensation were awarded; other heads were not
RW1 admitted the Claimant's dues were unpaid. The Claimant was entitled to salary from suspension to termination, three months' pay in lieu of notice, pay for untaken leave (the Respondent failing to produce evidence leave was taken), and compensation of six months for unfair termination. The certificate of service had already been issued, and no payments post-termination were recognised.
Legal principles established
#- Where the termination letter is silent on the reasons for termination, the employer fails to prove the reason was valid and fair, rendering the termination unfair under section 45(2) of the Employment Act
- Institution of civil proceedings is not a bar to disciplinary proceedings, and an employee's abandonment of an internal appeal cannot cure an already flawed disciplinary process
Court orders
#- 1.Salary during suspension from 1st November 2011 to 6th February 2012 of Kshs.620,298.80
- 2.Pay in lieu of notice – 3 months of Kshs.575,989.80
- 3.Annual leave 76 days of Kshs.561,220.80
- 4.Compensation of Kshs.1,151,979.60
- 5.Total award of Kshs.2,909,487.00
- 6.Respondent to pay claimant's costs of the suit
- 7.Interest to accrue on items 1 and 2 from the date of filing suit and on the rest of the items from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (employment dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ephantus Githui v Kenya Railways Staff Retirement Scheme [2019] KEELRC 2532 (KLR)", Case Analysis (2019). Not stated in judgment (cause filed 20th April 2012; Amended Memorandum of Claim dated 28th February 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2532/eng@2019-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.