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ELRCPartially AllowedCause No 506 of 2018· [2020] KEELRC 792 (KLR)

Fredrick S. Wesonga Adieri v Kenya Revenue Authority [2020] KEELRC 792 (KLR)

Employment and Labour Relations Court
29 June 2020
2,542 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya Revenue Authority was ordered to pay a former employee over Kshs. 2.3 million because it took six years to discipline him without solid evidence.

What this practically means

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Executive summary

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The Claimant, employed by the Kenya Revenue Authority from October 2006 and last serving as a Revenue Officer, was interdicted on 1st March 2012 over the alleged irregular release of containers from the Port of Mombasa without payment of taxes, occasioning revenue loss of about Kshs. 33.9 million. He was invited to a disciplinary hearing by letter dated 25th January 2016, appeared before a panel on 28th January 2016, and his contract was terminated on 31st August 2018 with immediate effect, more than six years after interdiction. He challenged the termination as substantively unjustified and procedurally unfair, claiming reinstatement or, alternatively, notice pay, various allowances, compensation, a certificate of service and costs. The Respondent maintained the process complied with its Code of Conduct, conceded notice pay and withheld salary, and sought dismissal of the claim. The Court found no valid reason for termination: the Respondent's witness could not give particulars of the containers, no investigation report or disciplinary minutes were exhibited, and the alleged evidence was only circumstantial. Procedurally, the process breached clause 8.2.7 of the Human Resource Manual requiring determination within six months, with a four-year delay to hearing and two further years to communicate the decision. Termination was declared unfair on both limbs. Reinstatement was refused because the Claimant remained an accused in an ongoing criminal trial. The Court awarded 10 months' salary as compensation (Kshs. 1,810,000) plus conceded notice pay (Kshs. 543,000), a certificate of service, and costs to the Claimant. Claims for transport allowance, annual leave pay, leave allowance and laundry allowance failed for lack of proof.

Key legal issues

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01

Validity of reasons for termination

Holding

No valid reason established

Reasoning

The termination letter alleged the Claimant was on duty when 12 containers left the Port irregularly, based on circumstantial evidence. On cross-examination the Respondent's Assistant Human Resource Manager lacked particulars of the containers, could not tell when they left the Port, and did not know gate rules. No investigation report or disciplinary minutes were exhibited. Oral evidence therefore failed to establish valid grounds for termination under Section 43.

p. 3
02

Procedural fairness of the disciplinary process

Holding

Procedure fell below the fairness threshold of Sections 41 and 45

Reasoning

The Claimant was interdicted in March 2012, heard four years later in January 2016, and only learned the decision two further years later in August 2018. The Respondent's own Human Resource Manual clause 8.2.7 required interdiction cases to be determined within 6 months. The prolonged delay, absence of minutes recording the delayed hearing, and non-supply of incriminating reports constituted a fundamental procedural flaw.

p. 3
03

Remedy of reinstatement

Holding

Reinstatement refused despite unfair termination

Reasoning

Though a strong case for reinstatement existed given the unfairness and the Claimant's clean record and long service, he remained an accused in an ongoing criminal trial over the container fraud. The Court reasoned it could not reinstate a person who might be convicted, making reinstatement neither reasonable, effective nor practicable. Compensatory remedies were granted instead.

p. 4
04

Compensation for unfair termination

Holding

Equivalent of 10 months' salary awarded

Reasoning

The Claimant had served about 12 years with a clean record, was in his 30s and had a reasonable expectation of serving another 23 years with a public body. Taking his gross monthly salary of Kshs. 181,000, the Court awarded 10 months' salary as compensation for the unfair termination, Kshs. 1,810,000, in addition to conceded notice pay.

p. 4

Legal principles established

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  • An employer must establish both valid reasons and a fair procedure to justify termination under Sections 41, 43 and 45 of the Employment Act
  • Where an employer's own code requires interdiction cases to be determined within 6 months, inordinate delay in hearing and deciding disciplinary proceedings renders the process unfair
  • An employer bearing the burden of justifying termination must avail investigation reports and disciplinary minutes; failure to do so defeats the claimed justification
  • Reinstatement will be denied where the employee is still an accused in an unfinished criminal trial

Court orders

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  1. 1.It is declared termination was unfair
  2. 2.The Respondent shall pay to the Claimant equivalent of 10 months' salary in compensation and 3 months' salary in notice, totaled at Kshs. 2,353,000
  3. 3.Certificate of Service to issue
  4. 4.Costs to the Claimant

Authorities

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Legislation

  • Employment ActSections 41, 43 and 45
  • E&LRC [Procedure] Rules 2016Rule 38
Jurisdiction invoked
Original employment and labour relations jurisdiction under the Employment Act 2007 (Sections 41, 43 and 45); E&LRC (Procedure) Rules 2016 Rule 38

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, "Fredrick S. Wesonga Adieri v Kenya Revenue Authority [2020] KEELRC 792 (KLR)", Case Analysis (2020). Cause No 506 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/792/eng@2020-06-29

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