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ELRCPartially AllowedCause No 1428 of 2011· [2021] KEELRC 1692 (KLR)

Isaac Kamitha Mwangi v Rift Valley Railways (K) Limited & another [2021] KEELRC 1692 (KLR)

Employment and Labour Relations Court
20 May 2021
4,692 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court upheld a railway worker's dismissal for negligence and time-barred his decade-late claim against a second employer, awarding only unpaid leave.

What this practically means

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Executive summary

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The Claimant, employed by Kenya Railways Corporation (2nd Respondent) from 1.3.1982, had his services transferred to Rift Valley Railways (K) Ltd (1st Respondent) on 1.11.2006 under a Concession Agreement dated 23.1.2006. On 6.12.2008 he was suspended with full pay after being arrested and charged with stealing by servant following the disappearance of a Honda water pump from a store in his custody. Before the criminal case concluded, he was dismissed by letter dated 8.1.2009 for negligent performance of duties. He was acquitted in the criminal case on 13.5.2011. He sued on 23.8.2011 seeking compensatory damages and terminal benefits totalling Kshs. 8,280,705.10. After the Concession Agreement terminated on 31.7.2017, he obtained leave to join the 2nd Respondent, claiming against it on grounds of legitimate expectation and negligence. The 2nd Respondent raised a preliminary objection on limitation. The court framed five issues and held: the dismissal was substantively fair because the employer had a valid reason under sections 44(4)(c) and 45 of the Employment Act - the Claimant negligently lost the pump in his sole custody; the dismissal was procedurally fair as he was heard, and the employer was not bound to await the criminal trial's outcome since the two processes run in parallel with different standards of proof. The Claimant therefore failed to discharge his burden under section 47(5). Against the 2nd Respondent, the cause of action arose on 8.1.2009 and joinder occurred in March 2019, ten years later, so the suit was time barred under section 90 of the Employment Act and the remaining issues were not considered. The court awarded only the undisputed leave claim for 2008 of Kshs. 38,266.66 plus interest against the 1st Respondent, dismissed the rest of the suit, and ordered each party to bear their own costs.

Key legal issues

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01

Whether the dismissal of the Claimant was substantively fair

Holding

Yes - the employer had a valid reason: the Claimant negligently performed his duties as custodian of the store, leading to loss of the water pump

Reasoning

The dismissal letter grounded the dismissal on negligent performance, not theft. The Claimant admitted the pump disappeared from the store whose keys he alone held, and that there was no breakage or tampering with the locks. Under section 44(4)(c) of the Employment Act, careless performance of duty justified summary dismissal, and the pendency of the criminal case was immaterial.

p. 5
02

Whether the dismissal was procedurally fair

Holding

Yes - the Claimant was given a chance to defend himself before the Disciplinary Committee, satisfying sections 41 and 45

Reasoning

Although the Claimant alleged pre-determination by the Disciplinary Committee, the court found the case straightforward since he voluntarily admitted the pump disappeared in his custody. The court also held that the employer was not bound to await the criminal case's conclusion because the two processes run in parallel with different standards of proof.

p. 5
03

Whether the claim against the 2nd Respondent is time barred

Holding

Yes - the cause of action arose on 8.1.2009 and the 2nd Respondent was joined in March 2019, ten years later, beyond the three-year limitation in section 90

Reasoning

Section 90 of the Employment Act requires claims to be filed within three years of the act complained of. The dismissal occurred on 8.1.2009; the injury was not continuing. The 2nd Respondent was joined only in March 2019 after the Concession Agreement terminated, conveniently, after the Claimant realised difficulty proceeding against the 1st Respondent. The remaining issues against the 2nd Respondent were therefore not considered.

p. 6
04

Whether the Claimant is entitled to reliefs against the 1st Respondent

Holding

Only the undisputed leave claim of 28 days for 2008 (Kshs. 38,266.66) plus interest; no compensation or post-dismissal benefits

Reasoning

Having found the dismissal lawful, the court held the Claimant was not entitled to compensation under section 49 of the Employment Act nor to salary or benefits accruing after separation. However, the undisputed leave claim for 2008 survived and was awarded with interest.

p. 6

Legal principles established

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  • Termination of employment must be both substantively and procedurally fair under section 45 of the Employment Act
  • Criminal proceedings against an employee can run parallel to disciplinary proceedings; the employer need not await the outcome of the criminal case, as the standards of proof differ
  • An employer may summarily dismiss an employee who carelessly performs his duties under section 44(4)(c) of the Employment Act
  • Claims arising from or based on the Employment Act or a contract of service must be instituted within three years under section 90 of the Employment Act
  • The employee bears the burden of proving unfair termination under section 47(5) of the Employment Act

Court orders

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  1. 1.Award to the Claimant the undisputed claim for leave of 28 days for 2008 equal to Kshs. 38,266.66 from the 1st Respondent plus interest
  2. 2.Dismissal of the suit save for the claim for leave awarded against the 1st Respondent
  3. 3.Each party to bear his or its own costs of the suit

Authorities

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Legislation

  • Employment Actsections 41, 43(2), 44(4)(c), 45, 47(5), 49, 51, 90
  • Kenya Railways Act Cap. 397 Laws of Kenyasection 87(a) and (b)
  • Limitation of Actions Act Cap. 22 Laws of Kenyanot specified
  • Civil Procedure RulesOrder 1 Rule 10

Cases cited (6)

  • James Okello Ouma & 4 Others v Rift Valley Railways (Kenya) Ltd
    [2018] eKLR
  • Jane Kiongo & the Others v Laikipia University & 7 Others
    [2019] eKLR
  • Attorney General v Mavi
    [2011] 2 SCR 504
  • Kenya Wildlife Services v Rift Valley Agricultural Contractors Ltd
    [2018] eKLR
  • Joseph Sebastian Ringo v Kenya Railways Corporation
    [2015] eKLR
  • O`Reilly v Markman
    [1983] 2 C 237
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 and the ELRC Procedure Rules (specific enabling provision not stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Isaac Kamitha Mwangi v Rift Valley Railways (K) Limited & another [2021] KEELRC 1692 (KLR)", Case Analysis (2021). Cause No 1428 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1692/eng@2021-05-20

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