Chris Ngaira Isabwa v Postal Corporation of Kenya [2020] KEELRC 1639 (KLR)
The bottom line
#Kenya's Employment Court ruled Postal Corporation unfairly fired a procurement manager without valid reason, awarding him over Kshs.2.1 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent had a valid reason to terminate the Claimant's employment
The Respondent had no valid reason; RW1 admitted the Claimant was not adversely mentioned in the forensic audit report and was not in the initial list of culpable employees, and most charges related to events before his employment.
The reason cited was gross misconduct arising from a forensic audit into the Electronic Funds Transfer procurement. RW1 conceded on cross-examination that the tender was advertised and evaluated before the Claimant was employed, that he was not on the evaluation committee, that the duty to advise on contract variation lay with the Corporate Secretary, and that the Claimant's name was absent from the initial list of culpable officers. The employer therefore failed to discharge its burden under Sections 43 and 45.
Whether the termination was procedurally fair
The court did not find procedural fairness sufficient to save the termination, given the absence of substantive justification; the statutory test requires both.
The Respondent argued that the show-cause letter and board meeting satisfied Section 41. However, the Claimant was never furnished with the forensic report on which the charges were based despite requesting it, and the employer's own witness conceded that several charges could not have been laid against the Claimant. The court applied Section 45(2): failure to prove either limb renders termination unfair.
What remedies flow from the unfair termination
Twelve months' gross salary compensation under Section 49 and one month's notice pay under Section 36 awarded; severance refused as unavailable outside redundancy.
Taking into account the length of service and that the Claimant did not contribute to the events leading to termination, the court exercised discretion under Section 49 to award the maximum twelve months' compensation. Notice pay followed from Section 36. Severance under Section 40 was rejected because it applies only to redundancy, which was not the case here.
Legal principles established
#- For a termination to pass the fairness test there must be both substantive justification and procedural fairness; the employer bears the burden of proving a valid reason.
- Where the employer fails to prove either a valid reason or procedural fairness, the termination is unfair under Section 45(2) of the Employment Act.
Court orders
#- 1.A declaration that the Claimant's dismissal was wrongful and unfair
- 2.Compensation of twelve (12) months' gross salary under Section 49 of the Employment Act in the sum of Kshs.165,010 x 12 = Kshs.1,980,120
- 3.One month's salary in lieu of notice under Section 36 of the Employment Act in the sum of Kshs.165,010
- 4.Total award of Kshs.2,145,130
- 5.Costs of the suit to the Claimant
- 6.Interest at court rates from the date of Judgment until payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over a claim of unfair termination under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chris Ngaira Isabwa v Postal Corporation of Kenya [2020] KEELRC 1639 (KLR)", Case Analysis (2020). Memorandum of Claim dated 17th June 2011 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1639/eng@2020-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.