David Wekesa Nambafu v Bob Morgan Services Ltd [2020] KEELRC 1180 (KLR)
The bottom line
#A Kenyan court ruled an employer cannot keep an employee suspended without pay after acquittal, awarding the employee six years' back salary.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit was statute barred under section 90 of the Employment Act
The suit was not time barred because the suspension had not been lifted and the suit was filed within 3 years of the acquittal
Section 90 requires employment claims within 3 years of the act complained of, or 12 months after cessation of a continuing injury. The court found the suspension continued unlifted even after the acquittal, so the claimant could sue to challenge the suspension at any time while it subsisted, or for accrued benefits within 3 years of the acquittal. The suit filed on 27.11.2014 fell within that window.
Whether the initial suspension was unlawful
The suspension pending the criminal case was lawful and justified
The claimant, an Operations Accounts Supervisor dealing with the employer's money, faced charges of theft and misappropriation of Sacco funds, putting his integrity in question. Suspension pending determination of criminal proceedings is a recognised employer right; here it was communicated in writing with clearly stated terms, satisfying procedural fairness.
Whether the continued suspension after acquittal was unlawful
The continued suspension after the acquittal was unfair and unlawful
Once the criminal proceedings ended with the acquittal on 25.1.2012, the basis of the suspension fell away. The employer ought to have recalled the claimant or served a fresh suspension pending disciplinary proceedings, but did not recall him for over two years, forcing the suit.
Whether the suspension amounted to constructive dismissal
No determination made as the issue was not pleaded
The claim of constructive dismissal was raised only in submissions, not in the pleadings. Relying on Migore and Mutinda Mule, evidence and submissions at variance with, or beyond, the pleadings must be disregarded. The court therefore made no finding on constructive dismissal.
Entitlement to salary for the suspension period
Claimant awarded salary for 67 months (72 months less 5 months of temporary work), totalling Kshs. 2,043,500
The claimant was entitled to salary for the six years of suspension pending the criminal case, but had a duty to mitigate by seeking alternative earnings. Evidence of mitigation earnings came only from the respondent's NSSF records showing 5 months of remittances during suspension; the respondent gave no figures of actual earnings. Salary of Kshs. 30,500 was awarded for 67 months.
Legal principles established
#- An employer may lawfully suspend an employee without pay pending determination of criminal proceedings where the reason is communicated in writing with clear terms
- Continuation of a suspension after the employee's acquittal, without recalling the employee or initiating disciplinary action, is unfair and unlawful
- A suspended employee is entitled to salary for the suspension period but must mitigate losses by seeking alternative earnings
- A suit challenging an unlifted suspension or seeking benefits accruing during the suspension is not time barred under section 90 of the Employment Act
Court orders
#- 1.Judgment entered for the claimant in the sum of Kshs. 2,043,500 plus costs and interest at court rates from the date of filing the suit
- 2.The award of Kshs. 2,043,500 is subject to statutory deductions
- 3.The respondent to issue the claimant a Certificate of Service
- 4.All other reliefs (compensation, leave and leave travelling allowance, salary in lieu of notice, payment for 62 days and service gratuity) dismissed
- Jurisdiction invoked
- Employment and labour relations claim under the Employment Act and the contract of service
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Njuguna v Sybrin Kenya (Employment and Labour Relations Cause E706 of 2020) [2024] KEELRC 287 (KLR)[2024] KEELRC 287 (KLR)16 Feb 2024
Cite this brief
#Cite this brief
Caselaw, "David Wekesa Nambafu v Bob Morgan Services Ltd [2020] KEELRC 1180 (KLR)", Case Analysis (2020). Not stated in judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1180/eng@2020-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.