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ELRCPartially AllowedNot stated in judgment· [2021] KEELRC 2326 (KLR)

Isaac Kimutai Chesire v County Government of Uasin Gishu [2021] KEELRC 2326 (KLR)

Employment and Labour Relations Court of Kenya
15 March 2021
JAJ. N. ABUODHA
3,069 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Claimant, a Fireman employed by the County Government of Eldoret for about 24 years, drove the County ambulance KCE 011D on the night of 15th January 2019, in the absence of the designated driver, to respond to what he described as a medical emergency. The vehicle was involved in an accident. He did not report the accident to police, and at the transport officer's direction towed the ambulance and repaired it at his own cost of about Kshs. 380,000. He was issued a show cause/interdiction letter dated 17th January 2019, responded on 6th March 2019 admitting driving without authority, was heard by a disciplinary committee, and the County Public Service Board resolved to dismiss him. The decision was only communicated on 19th March 2020, the delay being attributed to board transition and the Claimant's intervening appeal and early retirement application. The Court held that due process was followed, the delay was reasonably explained, and applying the reasonable-employer proportionality test, the reasons for dismissal were valid and justifiable. The alleged oral assurance that repairs would forestall discipline was unsupported by evidence. The Court nonetheless found it unjust for the respondent to retain the Claimant's repair expenditure and ordered a refund of Kshs. 363,741. The suit was otherwise dismissed with no order as to costs, each party bearing their own costs. Certiorari, reinstatement, withheld half salary, notice pay and compensation were all refused.

Key legal issues

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01

Procedural fairness of the disciplinary process

Holding

Due process was followed: the Claimant was issued a show cause letter, responded, was heard by a disciplinary committee, and the CPSB decided.

Reasoning

The Claimant conceded receiving the show cause/interdiction letter and responded to it on 6th March 2019. He was invited by letter dated 15th April 2019 to a disciplinary hearing, which was rescheduled and proceeded in his presence on 2nd May 2019. The delay in communicating dismissal was explained by transition between boards and intervening appeal and early retirement applications. The Claimant admitted driving without authority.

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02

Proportionality of dismissal and validity of reasons

Holding

The dismissal was proportionate and the reasons valid: the Claimant drove the ambulance without authority as a non-designated driver, caused an accident, and failed to report it to police.

Reasoning

Applying the reasonable employer test, the Court would not interfere where dismissal is the most proportionate measure. Damage to employer property is a reasonable ground for termination. The alleged oral assurance that repairs would preclude disciplinary action was unsupported by evidence. The Claimant did not deny being non-designated driver or failing to report the accident to police.

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03

Refund of repair costs

Holding

The respondent was ordered to refund Kshs. 363,741 spent by the Claimant on repairs, as dismissing him while retaining the money would be unjust.

Reasoning

Although the Court upheld the dismissal, it found it unjust for the respondent to both dismiss the Claimant and retain the money he spent repairing the ambulance, apparently in anticipation of reprieve. The partial success on this head informed the costs order that each party bear own costs.

p. 4

Legal principles established

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  • The decision to dismiss is objective; where a reasonable employer in the same position would consider dismissal the most proportionate disciplinary measure, the court will not interfere.
  • Any act or omission causing an employer loss or damage to property constitutes reasonable ground for termination of employment.
  • It is unjust for an employer to dismiss an employee and also retain money the employee spent repairing the employer's vehicle.

Court orders

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  1. 1.The suit is dismissed
  2. 2.The respondent to refund the Claimant the sum of Kshs. 363,741 which the Claimant spent on repairing the ambulance
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Employment Acts. 41; s. 44(4)(g)
  • County Government Acts. 76(1) and (2)
  • Constitution of KenyaArticle 41
  • County Public Service Human Resource Manualclauses D.32(7), (8), (9); D.30(1)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment dispute (Employment Act; County Government Act provisions pleaded)

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 Kimutai Chesire v County Government of Uasin Gishu [2021] KEELRC 2326 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2326/eng@2021-03-15

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