Juma & 5 others v Kenya Pipeline Company Limited (Cause 80, 81, 82, 83, 84 & 85 of 2017 (Consolidated)) [2022] KEELRC 69 (KLR)
The bottom line
#Kenya Ports Authority must pay six dismissed workers maximum compensation because it hid the evidence against them and proved no misconduct.
What this practically means
#Executive summary
#Key legal issues
#Whether the disciplinary procedure adopted was fair under section 41 of the Employment Act, 2007
The procedure was a pretence or sham of due process and amounted to unfair labour practice because the claimants were not given the investigation report or particulars of the evidence against them and could not cross-examine the investigator.
Although the claimants received show-cause letters, replied, and appeared before the staff disciplinary committee with a union representative, they had not been served with the investigation report, witness statements or audio recordings relied upon. The investigator was not present to be cross-examined, and recorded voice evidence was never played for the 1st claimant. The committee's reliance on undisclosed material meant the claimants could not defend themselves, breaching section 41 read with section 45(2)(c) and the right to fair labour practices under Article 41 of the Constitution.
Whether the respondent established valid and fair reasons for the summary dismissal
The respondent failed to show that the reasons for the dismissal existed and were genuine and fair under sections 43 and 45(2) of the Act; the investigation report did not establish individual culpability.
RW did not conduct the investigations and could not confirm the veracity of the findings. The report did not name the claimants in its findings, contained glaring internal contradictions about whether the respondent's guards were involved, identified two senior culprits who were not the claimants, and was admitted to be incomplete with recommended follow-up investigations never done. There was also no evidence that any fuel was actually lost. On a balance of probability the claimants stood vindicated.
Whether exceeding the 30-day suspension under clause 38 of the CBA vitiated the dismissal
The clause was inspirational rather than imperative, and since claimants drew full salary during suspension the respondent was not faulted for the delay.
The clause required effort to reach a decision within one month, not mandatory conclusion within 30 days. The dismissal came later than one month, but the Court found the provision aspirational and noted the mitigating fact that claimants continued receiving full salary and benefits during suspension.
Whether the remedy of reinstatement was available
Reinstatement was barred because the three-year statutory window under section 12(3)(vii) had lapsed.
Dismissal took effect on 22 July 2016; the three years lapsed on or about 22 July 2019. The pending administrative appeal did not keep time alive since the dismissal had taken effect, there was no prayer for determination of the appeal, and no contractual provision that a pending appeal stayed the dismissal.
Whether maximum compensation under section 49 was warranted
Maximum compensation was awarded as claimed, with no mitigating factor established and multiple aggravating factors against the respondent.
Each claimant had served long, clean periods (over ten to over 30 years) with promotions. The respondent pursued the claimants while the two identified likely culprits' fate was undisclosed, maintained deficient operational systems, and offered no evidence fuel was actually lost. The procedure was grossly unfair and a sham, constituting aggravating factors justifying the maximum award plus one month's pay in lieu of notice.
Legal principles established
#- An employer must serve the employee with the investigation report, relevant information and full particulars of allegations prior to a disciplinary hearing; failure to do so renders the dismissal procedurally unfair and amounts to unfair labour practice.
- Where the alleged misconduct amounts to a criminal offence of the complexity here, the employer is not properly equipped to determine criminal culpability and should have the matter investigated by the competent criminal justice agencies.
- It is unfair labour practice to visit upon an employee adverse consequences for losses attributable to deficiencies in the employer's operational policies and systems.
Court orders
#- 1.Declaration that the summary dismissal of each claimant by the respondent was substantively and procedurally unfair
- 2.Respondent to pay the 1st claimant Benson Amwoga Juma Kshs. 1,385,605.00
- 3.Respondent to pay the 2nd claimant Samuel Njau Wahome Kshs. 1,532,752.00
- 4.Respondent to pay the 3rd claimant Wenneslus Yaa Karisa Kshs. 1,070,719.00
- 5.Respondent to pay the 4th claimant George Nderitu Gachinwa Kshs. 2,606,851.00
- 6.Respondent to pay the 5th claimant Kefa Bosire Asande Kshs. 1,054,443.00
- 7.Respondent to pay the 6th claimant Dickson Lumumba Alwalla Kshs. 1,534,312.00
- 8.Payments less PAYE, to be paid by 01.08.2022 failing which interest at court rates from date of judgment until full payment
- 9.Respondent to pay each claimant the costs of the suit
- Jurisdiction invoked
- Articles 41 and 47 of the Constitution and sections 41, 43, 45, 47(5), 49 and 12(3)(vii) of the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Omanya v Kenya Pipeline Company Limited (Employment and Labour Relations Cause 70 of 2017) [2023] KEELRC 3323 (KLR)[2023] KEELRC 3323 (KLR)21 Dec 2023
- Omanya v Kenya Pipeline Company Limited (Employment and Labour Relations Cause 70 of 2017) [2023] KEELRC 3323 (KLR)[2023] KEELRC 3323 (KLR)21 Dec 2023
- Opondo v Jocham Hospital Limited (Cause E002 of 2022) [2023] KEELRC 1206 (KLR)[2023] KEELRC 1206 (KLR)18 May 2023
- Opondo v Jocham Hospital Limited (Cause E002 of 2022) [2023] KEELRC 1206 (KLR)[2023] KEELRC 1206 (KLR)18 May 2023
Cite this brief
#Cite this brief
Caselaw, "Juma & 5 others v Kenya Pipeline Company Limited (Cause 80, 81, 82, 83, 84 & 85 of 2017 (Consolidated)) [2022] KEELRC 69 (KLR)", Case Analysis (2022). Cause No. 80 of 2017 (consolidating Causes Nos. 80 to 85 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/69/eng@2022-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.