John G. Thumbi v Kenya Airports Authority [2020] KEELRC 1119 (KLR)
The bottom line
#A Kenyan court ordered Kenya Airports Authority to pay its former finance boss Kshs 11 million because a presidential directive, without evidence, cannot justify firing someone.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant established a prima facie case of unfair termination shifting the burden to the employer
The claimant satisfied the court prima facie that the respondent had no valid or justifiable reason to terminate his services, shifting the burden to the employer to justify the termination.
Relying on Kennedy Maina Mirera v Barclays Bank of Kenya Ltd, the court held that once a claimant shows prima facie that termination lacked valid reason and fair procedure, the employer must rebut. The claimant showed the tender was processed lawfully under the Public Procurement and Disposal Act, he acted collectively in the tender committee, and the EACC investigations exonerated him, which the respondent did not displace.
Whether the respondent had a valid and justifiable reason for termination
No valid reason existed; the real motivation was a presidential directive, which cannot justify termination under section 43(1) of the Employment Act.
The respondent justified the termination on alleged failure to advise on financial implications and risk of loss, but its own witness admitted there was nothing wrong with the tender until the presidential directive, that the contract was a self-financing concessionaire agreement with no financial implications for the respondent, and produced no evidence of financial risk. The court found the termination selective and unnecessary.
Remedies for unfair termination
The court awarded the maximum 12 months' gross salary as compensation for unfair termination, in addition to terminal benefits, with interest and costs.
Having found the termination unfair and unjustified, the court exercised its discretion to award the maximum 12 months' salary under the Employment Act, namely Kshs 11,142,024/=, in addition to terminal benefits mentioned in the termination letter, subject to taxes and statutory deductions, with interest at court rates and costs of the suit to the claimant.
Legal principles established
#- In a claim for unfair termination, the claimant must adduce prima facie evidence that the termination lacked valid reason and fair procedure, upon which the burden shifts to the employer to rebut.
- A directive from a powerful office, unsupported by evidence, cannot constitute a valid and justifiable reason for termination under section 43(1) of the Employment Act.
Court orders
#- 1.Award of 12 months' salary as compensation for unfair termination, being Kshs 11,142,024/=, in addition to terminal benefits mentioned in the termination letter if not already paid
- 2.The award to be subject to taxes and statutory deductions but to attract interest at court rates until payment in full
- 3.Claimant to have costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John G. Thumbi v Kenya Airports Authority [2020] KEELRC 1119 (KLR)", Case Analysis (2020). Cause No 1794 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1119/eng@2020-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.