James Andako v National Industrial Training Authority [2021] KEELRC 525 (KLR)
The bottom line
#NITA's audit manager won KShs 3.1 million after a Kenyan court found his dismissal lacked both evidence and fair procedure.
What this practically means
#Executive summary
#Key legal issues
#Validity of reasons for termination
The Respondent failed to prove the weighty charges and had no valid reason for termination under Sections 41(1 and 2) and 45(2) of the Employment Act
The charges included negligence causing losses under Sections 197 and 198 of the Public Finance Management Act, but no documentary or oral evidence of the alleged negligence or losses was tabled. The Claimant gave comprehensive, detailed responses to each charge, explaining that imprest overlap rested with other departments and that medical payments were approved by the tender committee. Without evidence of loss, the Respondent failed the statutory test of a valid and fair reason.
Procedural fairness of the disciplinary process
The procedure did not comply with Section 41 of the Employment Act
The Claimant was not availed the investigation report and other relevant documents underlying the charges, was given less than the 21 days prescribed by the Respondent's HR Manual to respond to the notice to show cause, was not offered the option of being accompanied by a fellow employee or union representative, and no minutes of the disciplinary committee meeting were produced to show how the hearing was conducted. The appeal was dismissed without any further hearing.
Effect of the Respondent failing to call witnesses
The absence of the Respondent's oral evidence did not defeat the defence, as the court may act on the pleadings, but the untested claims did not discharge the Respondent's burden
The Respondent chose not to adduce evidence or avail witnesses for cross-examination, relying on written statements. The court held there was no necessary prejudice in foregoing oral evidence, but the alleged losses and negligence remained unproven, so the Respondent could not establish valid reasons for the dismissal.
Appropriate remedies for unfair termination
Reinstatement unavailable; 10 months' salary awarded as compensation; 60 months' claim refused
Reinstatement was time-barred under Section 12(3)(vii) of the ELRC Act and the Kenya Airways authority requires exceptional circumstances. Damages at large were assessed on a conventional yardstick, giving 10 months' salary. The 60 months' prayer was refused to avoid unjust enrichment, applying the proportionality principle in D.K. Njagi Marete v Teachers Service Commission.
Legal principles established
#- In a disciplinary hearing an employee must be availed the materials and evidence against him; failure to do so offends procedural fairness
- Both a valid reason and procedural fairness are mandatory in termination of employment
- Reinstatement can only be awarded within three years of dismissal
Court orders
#- 1.Declaration that the Claimant was unfairly terminated
- 2.Award of Kshs.3,105,010 (310,501 x 10) as general damages for distress and anguish and in full and final settlement, with interest at court rates
- 3.Costs of the suit awarded to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Act (Sections 12(4) and 12(3)(vii)) and Article 41 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Andako v National Industrial Training Authority [2021] KEELRC 525 (KLR)", Case Analysis (2021). Not stated in the judgment (ELRC Cause, Statement of Claim dated 29th June 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/525/eng@2021-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.