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ELRCPartially AllowedCause No 2101 of 2015· [2020] KEELRC 244 (KLR)

Josphat Shem Otuba v Kenya Forest Service [2020] KEELRC 244 (KLR)

Employment and Labour Relations Court
13 November 2020
3,852 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court ruled a dismissal unfair because the employee never got a physical disciplinary hearing, even though the fraud allegations against him were valid.

What this practically means

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Executive summary

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The Claimant, a former employee of the Respondent parastatal, claimed that his summary dismissal on 23rd July 2014 was unlawful, alleging that he was denied a hearing and sought a declaration of unlawfulness, terminal benefits, and salary until reinstatement (he later abandoned reinstatement due to loss of eyesight). The Respondent maintained that the Claimant fraudulently acquired accountable documents - forging requisition letters, stealing charcoal movement permits and official receipt booklets, and sharing proceeds with one Dennis Onzee - and that his dismissal followed a fair disciplinary process, investigations, and appeals. The court framed two issues: whether the termination was lawful and whether the Claimant was entitled to the reliefs sought. It held that the Respondent had a valid reason for dismissal, finding the investigation report - including the Claimant's confessed statement, his M-Pesa statement showing receipt of Kshs.76,900/-, and Onzee's corroborating statement - overwhelming. However, the court found a breach of section 41 of the Employment Act because the Claimant was never invited to a physical disciplinary hearing; only his written response to the suspension letter was considered by the Disciplinary Committee. Since section 45(2) requires both valid reason and fair procedure, the termination was held unprocedural and therefore unfair. The court awarded one month's salary in lieu of notice and one month's salary as compensation for the unfair procedure, totalling Kshs.66,200/-, with costs and interest, but declined salary to retirement, annual leave, severance pay, unpaid leave allowance and pension contributions as unproved or not properly sought.

Key legal issues

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01

Whether the Respondent had a valid reason to dismiss the Claimant

Holding

Valid reason was established - the investigation report evidenced fraudulent acquisition and diversion of accountable documents and receipt of Kshs.76,900/- via M-Pesa.

Reasoning

The dismissal letter cited involvement in fraudulent activity of accountable documents. The investigation report contained the Claimant's own statement confessing to authoring a fake requisition letter, his M-Pesa statement showing receipt of Kshs.76,900/-, and a corroborating statement by Dennis Onze detailing how permits and receipt books were issued to him and proceeds sent via M-Pesa. The court found the evidence overwhelming and the reason valid, notwithstanding the Claimant's denial and claim of coercion.

p. 5
02

Whether the disciplinary procedure complied with section 41 of the Employment Act

Holding

No - the Claimant was not invited to a physical disciplinary hearing; only his written response to the suspension letter was considered.

Reasoning

The Claimant was interrogated by the investigating officer, suspended, and asked to respond in writing to the charges. The Disciplinary Committee considered his written response and recommended dismissal without convening a hearing at which he was present. His two appeals did not cure the defect. Section 41 mandates a physical hearing before a fellow employee or union official, so the procedure was defective.

p. 5
03

Whether the termination was unfair despite valid reason

Holding

Yes - termination was unprocedural and therefore unfair because fair procedure was lacking.

Reasoning

Section 45(2) requires both elements. Having found valid reason but no fair hearing, the court held the termination unfair on procedural grounds only, justifying limited compensation of one month's salary rather than the maximum twelve months.

p. 5

Legal principles established

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  • For a termination to be fair the employer must prove both valid reason under section 43 and fair procedure under section 41 of the Employment Act, and where there is an internal disciplinary process the employer must additionally comply with it.
  • Section 41 of the Employment Act requires a physical hearing of the employee in the presence of a shop floor union official or fellow employee of his choice; consideration of a written response alone does not suffice.
  • Under section 45(2), both valid reason and fair procedure must be proved; valid reason alone does not render a termination fair.

Court orders

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  1. 1.Judgment entered in favour of the Claimant against the Respondent in the total sum of Kshs.66,200/- (Kshs.33,100/- in lieu of notice and Kshs.33,100/- as one month's salary compensation for unfair procedure)
  2. 2.Respondent to pay Claimant's costs
  3. 3.Interest to accrue on the decretal sum at court rates from the date of judgment

Authorities

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Legislation

  • Employment ActSection 40
  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 45 (including section 45(2))
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (14)

  • Peter Maina Kimani v Mwalimu Co-operative Society
    Cause No. 603 of 2009
  • Miriam Siwa v Postbank Limited
    Cause 837 of 2011
  • BIFU v Sacco Society Limited
    Cause 1109 of 2011
  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    [2014] eKLR
  • Shankar Saklani v DHL Forwarding (K) Limited
    [2012] eKLR
  • Anthony Mkala Chitavi v Malindi Water & Sewerage Company Ltd
    [2013] eKLR
  • Jackson Mwanzia Musembi v Republic
    [2017] eKLR
  • Philip Nzoka Watu v Republic
    [2016] eKLR
  • James Mulinge v Freight Wings Ltd & 3 Others
    [2016] eKLR
  • Franklin Mbura Washe v Gordon Mwatata Mwaringa
    [2019] eKLR
  • Andrew Wafula Amutalla v Kenyatta University
    [2019] eKLR
  • Patrick Njuguna Kariuki v Delmonte (K) Ltd
    cause 95 of 2011
  • D. K. Marete v Teachers Service Commission
    [2013] eKLR
  • Galaxy Paints Company Limited v Falcon Guards Limited
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (unfair termination claim)

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, "Josphat Shem Otuba v Kenya Forest Service [2020] KEELRC 244 (KLR)", Case Analysis (2020). Cause No 2101 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/244/eng@2020-11-13

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