Onchwari v National Authority for Campaign Against Alcohol and Drug Abuse (Cause 2036 of 2017) [2022] KEELRC 60 (KLR)
The bottom line
#Kenya's Employment Court found NACADA unfairly terminated its finance director, awarding him nearly Kshs. 5 million in compensation and defamation damages.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether on procedural fairness, this matter is res judicata the judgment in Judicial Review Application Number 2 of 2016
- 2.Whether if the answer to (i) above is in the negative, the termination of the Claimant's employment was procedurally fair
- 3.Whether the termination of the Claimant's employment was substantively fair
- 4.Whether the Claimant is entitled to the reliefs sought or any of them
- 5.Who should bear the costs of this suit
Key legal issues
#Res judicata vis-à-vis the Judicial Review judgment in JR No. 2 of 2016
The claim is not res judicata; the JR judgment dealt with the investigatory interdiction, a cause of action independent of the later termination
The court held the Claimant's interdiction was investigatory, not punitive, pending investigations. The judicial review proceedings concerned only the interdiction process then underway; the termination process post-dated that judgment and had not been undertaken when it was delivered. Procedural fairness had to be observed afresh after the investigations, so the res judicata and functus officio objections failed.
Procedural fairness of the termination
The termination was procedurally unfair: 7-day show-cause contrary to the 21-day manual provision; no hearing; no investigation findings shared; appeal wrongfully denied
The employer disregarded its own Human Resource Manual, which required 21 days to respond and a Staff Advisory Committee report before disciplinary action. No minutes or report showed any hearing or committee recommendation for termination. The denial of the contractual right of appeal on the ground that the Claimant had cleared with the Authority rendered the process incomplete and exhibited bad faith.
Substantive fairness of the termination
The termination was substantively unfair; the Respondent failed to prove valid and fair reasons under sections 43 and 45(2)
The Board terminated the Claimant on grounds that were themselves the subject of pending investigations by other agencies, without investigation reports or a final committee recommendation. The Board had knowledge of and approved the emergency media procurement, as shown in the Chairman's unchallenged letter to PPOA, and other officers involved received lighter sanctions. No reasonable employer would have terminated in the circumstances.
Employment defamation
Established; the Respondent's CEO circulated false accusations of mal-procurement to Government agencies, damaging the Claimant's employability
The CEO wrote to various Government agencies accusing the Claimant of mal-procurement, and the Chairman's letter to PPOA effectively stated those accusations were false. The statements were factual and capable of evaluation for truth. The Claimant's unshaken evidence that he had been unable to secure employment supported the reputational damage, justifying general damages of Kshs. 500,000.
Remedies
12 months' gross salary (Kshs. 4,476,000) awarded under section 49(1)(c); reinstatement, remainder-of-contract damages and separate discrimination damages refused
In exercising the section 49(1)(c) discretion the court weighed the unserved contract period, the procedural and substantive unfairness, the malice and absence of good faith, the Claimant's continued unemployment, and its decision not to grant other damages separately. Reinstatement was statute-barred by the three-year limit, and remainder-of-contract damages are not awardable under the Employment Act's remedy structure.
Legal principles established
#- An investigatory interdiction falls outside the procedural-fairness inquiry into termination; procedural fairness must be observed afresh after investigations and post any interdiction judgment, and res judicata does not attach to the later termination process
- Denial of an employee's contractual right of appeal renders the termination process technically incomplete and procedurally unfair and evidences bad faith
- Adverse findings from investigations must be brought to an employee's attention for representation before an adverse decision is made
- Employment defamation is defamation per se; an employee need not prove specific damages
- Damages equivalent to salary for the unexpired period of a fixed-term contract are not awardable in unfair termination claims
- Where an employer fails to tender a circular it relies on as a ground of termination, an adverse inference may be drawn against it
Court orders
#- 1.A declaration that the termination of the Claimant's employment was procedurally and substantively unfair
- 2.Compensation pursuant to section 49(1)(c) of the Employment Act of Kshs. 4,476,000
- 3.General damages for employment defamation of Kshs. 500,000
- 4.Interest on the compensation and defamation awards at Court rates from the date of filing suit till full payment
- 5.Costs of the suit to the Claimant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and the Constitution (employment and labour relations matters)
Relief refused
#Reinstatement to his last position (and alternative re-engagement)
The relief cannot be granted because it is now more than three years since the date of termination
Compensation for the remainder of the contract period (Kshs. 13,072,012.16)
Damages equivalent to salary for the unexpired term of a contract are not awardable under the structure of the Employment Act remedies
Damages for discrimination
The unfairness found is to be taken into account in the section 49(1)(c) award; a separate award would result in over-compensation
Exemplary and/or punitive damages of Kshs. 10,000,000
Not separately awarded; malice and bad faith were instead factored into the compensatory award
Costs
Costs of this suit awarded to the Claimant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I find considerable dificulty to understand how the principle of res judicata can be said to be applicable here. I am not persuaded to sustain the argument that on procedural fairness aspect raised this matter is res judicata.
To deny an employee his contractual right of appeal renders the termination process technically incomplete, and procedurally unfair. It exhibits bad faith and malice on the part of the employer.
Any adverse findings against an employee borne out of any investigations by the employer or any person requested to so investigate must be brought to the attention of the employee for a representation thereon, before the employer can make an adverse decision against the employee.
Put in another way, no reasonable employer would have in the circumstances of the matter, terminated an employee's employment.
it is due to the significant impact that the defamation can have on an employee that employment defamation is defamation perse, meaning that the Claimant needed not prove specific damages in order to prevail.
In the upshot this Court enters Judgment in favour of the Claimant in the following terms; a. A declaration that the termination of his employment was procedurally and substantively unfair.
Compensation pursuant to the provisions of section 49[1][c] of the Employment Act, Kshs. 4, 476,000. c. General damages for employment defamation, Kshs. 500,000.
Issues in the judgment
#Internal date contradictions on the disciplinary process: the notice to show cause is dated 24th October 2014 yet the Respondent's witness asserted it was issued pursuant to advice letters issued in 2015
The Claimant's date of termination is stated inconsistently in the judgment - 'on the 1st November 2017' in the evidence narration versus 1st November 2016 elsewhere
Date inconsistencies in citations, e.g. the termination decision meeting referred to as 'Special Meeting held on 31st October, 2021' in the Respondent's submissions and 'Board meeting of 31st June 2014'
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Gakuo v Bomet University College (Petition E008 of 2025) [2025] KEELRC 2282 (KLR)[2025] KEELRC 2282 (KLR)31 Jul 2025
Cite this brief
#Cite this brief
Caselaw, "Onchwari v National Authority for Campaign Against Alcohol and Drug Abuse (Cause 2036 of 2017) [2022] KEELRC 60 (KLR)", Case Analysis (2022). ELRC Cause (Nairobi), Amended Memorandum of Claim dated 15th March 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/60/eng@2022-04-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.