Julius Kipchirchir Rotich v County Government of Uasin Gishu [2021] KEELRC 2365 (KLR)
The bottom line
#A Kenyan court ruled a county employee's summary dismissal unfair because his employer ignored the disciplinary committee's warning recommendation and produced no evidence for its claims.
What this practically means
#Executive summary
#Key legal issues
#Validity of the reason for summary dismissal
The reason - failure to obey lawful instructions to stop a construction - was not a valid and fair reason, as the employer produced no evidence that the construction was unapproved or that the alleged media notice requiring regularisation existed
The employer alleged the developer's previously approved plan had expired and was not regularised pursuant to a media advertisement, but neither the advertisement nor any supporting document was produced. The Claimant testified the construction had an approved plan and that he in fact stopped the construction as instructed. The lack of clarity over the status of approvals inherited from the former Municipality undermined the accusation. Consequently, the evidence did not constitute valid and fair reasons for summary dismissal under sections 43 and 45 of the Employment Act.
Proportionality of the sanction and departure from the disciplinary committee's recommendation
The Board's decision to impose summary dismissal, contrary to the disciplinary committee's recommendation of a first warning, was disproportionate, excessive and unfair
The disciplinary committee, having heard the evidence, recommended only a first warning. The Board nonetheless dismissed the Claimant summarily, claiming it was not bound by the committee's recommendation. The court held that while the Board may not be strictly bound, natural justice required it to review the evidence before the committee and be persuaded the committee erred before varying its recommendation; it could not rely on new or independent evidence unknown to the committee and the Claimant. The dismissal was therefore disproportionate and excessive.
Appropriate remedy for unfair termination
Reinstatement was inappropriate; the Claimant was awarded twelve months' salary as compensation plus one month's salary in lieu of notice, together with pension and accrued benefits
Reinstatement and compensation are alternative remedies that cannot be granted simultaneously. The Claimant had served for nineteen years and five months and was most probably nearing retirement, making reinstatement unsuitable. The court therefore exercised its discretion under the Employment Act to award the equivalent of twelve months' gross salary as compensation for the unfair termination, one month's salary in lieu of notice if unpaid, and the Claimant's pension and accrued benefits, subject to taxes and statutory deductions.
Legal principles established
#- Where a disciplinary committee recommends a sanction, the employer's board cannot ignore or vary that recommendation on the basis of new or independent evidence unknown to the committee and the employee; natural justice requires the board to review the evidence before the committee before departing from its recommendation
- An employer bears the burden under section 43 of the Employment Act to prove valid and fair reasons for termination, and failure to substantiate alleged reasons with evidence renders the termination unfair
Court orders
#- 1.One month's salary in lieu of notice of Kshs. 77,000
- 2.Twelve months' salary as compensation for unfair termination of Kshs. 924,000
- 3.Pension and other benefits accrued as at the time of summary dismissal
- 4.Costs of the suit to the Claimant
- 5.Items (a) and (b) to be subject to taxes and statutory deductions
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair termination claims under the Employment Act, 2007; County Government Act, 2012 relied on by the parties
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Julius Kipchirchir Rotich v County Government of Uasin Gishu [2021] KEELRC 2365 (KLR)", Case Analysis (2021). Case No ELRC.C/32/2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2365/eng@2021-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.