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ELRCPartially AllowedNot stated in the judgment as provided· [2021] KEELRC 101 (KLR)

Freddy Kipkorir Lang’at v Co-operative University of Kenya [2021] KEELRC 101 (KLR)

Employment and Labour Relations Court
20 December 2021
NMNzioki Wa Makau
2,575 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled an employer fired a security officer for a valid reason but unfairly denied him the documents he needed to defend himself, awarding compensation.

What this practically means

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Executive summary

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The Claimant, employed as a Chief Security Officer by the Respondent from 2nd June 2015, was suspended on 9th August 2019 and, after a disciplinary hearing before the Non-Teaching Staff Disciplinary Committee and an unsuccessful appeal, had his services terminated for gross misconduct. The employer's case rested on the Claimant's absence from duty without leave and on his drawing salaries from two Government institutions, having left the Police Service only in January 2016, contrary to the Public Officer Ethics Act. The Claimant complained that he was never furnished with the documents and evidence relied upon in the disciplinary process, rendering it unfair. The court found that there was genuine and substantive reason to terminate the contract, given the Police Service's confirmation of the resignation date, but that the process failed the procedural fairness limb: the Respondent never availed the crucial documents or correspondence on which the allegations were based, denying the Claimant an opportunity to defend himself. Relying on Walter Ogal Anuro v Teachers Service Commission, the court held the termination unfair for want of procedure. The Claimant was awarded compensation of five months' salary of Kshs. 660,570/-, together with costs of the suit and interest at Court rates from the date of judgment until payment in full. The prayer for reinstatement was not granted, compensation being awarded in its place.

Key legal issues

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01

Substantive justification for termination

Holding

The court found genuine reason for termination, as the Claimant was simultaneously serving the Police Service and the Respondent

Reasoning

The Police Service confirmed the Claimant resigned only in January 2016, yet he had been employed by the Respondent from June 2015. Drawing salaries from two Government institutions contravened the Public Officer Ethics Act and the Respondent's HR Policies and Procedures Manual, providing a valid reason for termination.

p. 2
02

Procedural fairness of the disciplinary process

Holding

The termination was unfair for want of procedure because the Respondent never availed the documents relied upon to the Claimant

Reasoning

Although the Claimant was suspended with a charge sheet and given notice of the hearing, the Respondent shared no correspondence or documentary evidence with him, depriving him of the opportunity to prepare a defence. The court analogised to Walter Ogal Anuro v Teachers Service Commission, where incomplete investigative and disciplinary processes failed the procedural fairness test.

p. 2
03

Remedy for unfair termination

Holding

The Claimant was awarded compensation of five months' salary (Kshs. 660,570/-) plus costs and interest

Reasoning

Having found the termination procedurally unfair, the court exercised its discretion under the Employment Act to award compensation calibrated to the length of the Claimant's employment with the Respondent, rather than the 12 months' salary sought.

p. 3

Legal principles established

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  • For a termination to pass the fairness test, there must be both substantive justification and procedural fairness
  • Procedural fairness requires the employer to avail to the employee the documentation relied upon in the disciplinary process so that a defence may be prepared

Court orders

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  1. 1.Kshs. 660,570/- as compensation being 5 months' salary
  2. 2.Costs of the suit to the Claimant
  3. 3.Interest at Court rates on the compensation from date of judgment till payment in full

Authorities

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Legislation

  • Employment ActSections 9, 10, 41, 45, 49, 50
  • Public Officer Ethics Act 2003Section 11

Cases cited (6)

  • Katiwa Kanguli v Bamburi Cement Limited
    [2015] eKLR
  • Pius Kimaiyo Langat v Co-operative Bank of Kenya Ltd
    [2017] eKLR
  • Kenfreight (EA) Limited v Benson K. Nguti
    [2016] eKLR
  • Mary Chemwono Kiptui v Kenya Pipeline Company Limited
    [2014] eKLR
  • Alphonce Maghanga Mwachanya v Operation 680 Limited
    [2013] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes under the Employment Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Freddy Kipkorir Lang’at v Co-operative University of Kenya [2021] KEELRC 101 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/101/eng@2021-12-20

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