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ELRCPartially AllowedCause No 713 of 2018· [2020] KEELRC 916 (KLR)

Albert Yawa Katsenga v Kenya Revenue Authority (Cause 713 of 2018) (Employment and Labour) [2020] KEELRC 916 (KLR)

Employment and Labour Relations Court
28 May 2020
HWHellen Wasilwa
2,136 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled KRA fairly fired an employee over a bribery conviction but unfairly skipped proper disciplinary procedure, awarding him four months' salary.

What this practically means

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Executive summary

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The Claimant, formerly Assistant Commissioner - Western Region at Kenya Revenue Authority, was suspended on half pay in October 2010 after being charged with soliciting a bribe. He was issued a show cause letter in July 2011, to which he responded, and was allegedly invited to a disciplinary hearing. He was dismissed by a letter dated 24/8/2015 sent to his postal address, which he claimed he only received in February 2018. After his conviction was set aside by the High Court in November 2015, he sought reinstatement, declarations of unfair termination and contempt, compensation and costs. The Respondent maintained that his dismissal was for gross misconduct under its Code of Conduct, that the High Court had not overturned the conviction on the merits, and that it was not precluded from disciplining him despite the acquittal. The court found the reason for dismissal valid, since at the time of dismissal the Claimant had been charged and convicted of soliciting a bribe. However, the Respondent failed to exhibit minutes of the disciplinary proceedings, and therefore did not prove compliance with section 41 of the Employment Act. Applying section 45(2), the court held the termination procedurally unfair and awarded the Claimant four months' salary as compensation (Kshs. 514,000 less statutory deductions), plus costs and interest at court rates. Reinstatement, the contempt declaration and personal liability of the Deputy Commissioner were not granted. Delivered via zoom on 28 May 2020.

Key legal issues

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01

Validity of reason for termination

Holding

The reason (being charged and convicted of soliciting a bribe) was valid at the time of dismissal

Reasoning

The Claimant was suspended on half pay following a charge of soliciting a bribe and was found guilty by the trial magistrate before his dismissal in August 2015. Under section 43 of the Employment Act, the reason is what the employer genuinely believed to exist at termination. The fact of charge and conviction at the time of dismissal satisfied this test, notwithstanding the later quashing of the conviction on appeal.

p. 3
02

Due process / fair hearing before dismissal

Holding

The process was unfair as the Respondent failed to prove the Claimant was heard

Reasoning

Although the Respondent produced letters inviting the Claimant to disciplinary hearings, it did not produce minutes of the proceedings to show that the hearing actually took place or that he was accorded an audience. The burden of proving compliance with section 41 lay on the employer; failure to exhibit the minutes meant the requirements of section 45(2) were not met, rendering the termination procedurally unfair.

p. 3
03

Receipt of dismissal letter

Holding

The court found the Claimant was dismissed by the letter of 24/8/2015 notwithstanding his claim of non-receipt

Reasoning

The dismissal letter was sent to the Claimant's postal address in Mombasa, which he admitted was his address. The court therefore treated the dismissal as effective from 24/8/2015, rejecting the Claimant's assertion that he only learned of it in February 2018.

p. 3

Legal principles established

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  • An employer must prove the reason for termination; failure renders the termination unfair
  • A reason for termination must be valid and exist at the time of dismissal
  • Where an employer fails to exhibit minutes or proof of the disciplinary process, it has not discharged the burden of proving due process

Court orders

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  1. 1.Respondent to pay the Claimant compensation of 4 months' salary (Kshs. 514,000 less statutory deductions)
  2. 2.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment Actsections 41, 43, 44(4), 45(2)
  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 21
  • Fair Administrative Action Actsection 4(1)
  • Kenya Revenue Authority Code of Conductclauses 4.1, 4.1.1, 6.13

Cases cited (4)

  • Albert Yawa Kasenga v Republic
    Criminal Appeal No. 37 of 2014
  • Liz Ayan v Leisure Lodge Limited
    [2018] eKLR
  • Postal Corporation of Kenya v Andrew K. Tanui
    [2019] eKLR
  • Kenfreight EA Limited v Benson K. Nguti
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair termination claims under the Employment Act, 2007 (sections 41, 43, 45)

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, "Albert Yawa Katsenga v Kenya Revenue Authority (Cause 713 of 2018)  (Employment and Labour) [2020] KEELRC 916 (KLR)", Case Analysis (2020). Cause No 713 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/916/eng@2020-05-28

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