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ELRCPartially AllowedCause No. 1034 of 2017· [2022] KEELRC 256 (KLR)

Felix O Siata v Kenya Revenue Authority [2022] KEELRC 256 (KLR)

Employment and Labour Relations Court
31 March 2022
2,522 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled KRA unfairly retired an employee without valid reasons or fair procedure, awarding five months' salary, costs and interest.

What this practically means

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Executive summary

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The Claimant, formerly a Supervisor in the Respondent's Customs Department at Malaba border, was retired in the authority's interest in June/July 2014 following disciplinary proceedings over the alleged abetting of tax evasion and loss of revenue of approximately Kshs.762 million involving Supermatch Cigarettes from Uganda, failure to keep records, failure to man the lower gate, and concealment of the illegal employment of a member of the public at the upper gate. He sued for a declaration that his retirement was illegal, null and void, compensation for time lost, general damages and damages for unlawful termination. The Respondent defended the retirement as a lawful exercise of its Code of Conduct upon loss of confidence, and asserted compliance with Sections 36, 41, 43, 44 and 45 of the Employment Act, including payment of three months' notice in lieu. The court found the Respondent's evidence 'not water tight': there were no export documents, no statements from drivers or clearing agents, and no proof the Claimant employed the person at the gate. It further found the disciplinary process flawed: the Claimant was not told the specific charges, not supplied with the documents used against him, and not informed of his right to be accompanied by a witness or union representative, and his appeal was not answered until 2018. Termination was held unfair and wrongful. Reinstatement was refused as the termination was over three years old; the Claimant was awarded the equivalent of five months' salary as damages for wrongful and unfair termination, with costs and interest, and mention set for 3rd May 2022 to confirm the award.

Key legal issues

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01

Valid reason for termination

Holding

The reasons given by the Respondent were shallow and unsubstantiated; the evidence did not connect the Claimant to the alleged tax evasion and loss of Kshs.762 million

Reasoning

The court found the investigation evidence wanting: no export documents, no statements from clearing agents or the drivers involved, and no proof that the Claimant employed the person at the gate. The Respondent's second witness could not recall the procedures applicable at the time. Evidence of that calibre could not sustain the very serious allegations levelled against the Claimant.

p. 3
02

Fair procedure under Sections 41 and 45 of the Employment Act

Holding

The disciplinary process was procedurally flawed: the Claimant was not informed of the specific charges, not supplied with documents, and not told he could bring a fellow employee or union representative

Reasoning

The invitation letters did not disclose the specific charges nor were documents availed. The Claimant was never informed of his right to be accompanied by an employee or shop union representative as required by Section 41. Documents he requested for his appeal were not availed, and his appeal went unanswered until 2018. This fell short of the hearing contemplated by Sections 41 and 45.

p. 3
03

Termination by notice or payment in lieu

Holding

Payment of notice cannot cure absence of valid reason and fair procedure

Reasoning

The Respondent argued that payment of three months' notice in lieu aligned with Section 36 of the Employment Act. The court, citing Kenfreight E.A. Limited v Benson K. Nguti, held that termination by notice or payment in lieu is not enough; valid reasons and fair procedure must still be demonstrated. The notice payment therefore did not legitimise the retirement.

p. 3

Legal principles established

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  • An employer must furnish documents relied on in disciplinary proceedings to the employee and allow him to defend himself in the presence of a witness of his choice
  • Termination by notice or payment in lieu of notice is insufficient; there must be valid reasons and fair procedure

Court orders

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  1. 1.Prayer for reinstatement declined as termination was over 3 years old
  2. 2.Damages for wrongful and unlawful termination awarded at an equivalent of 5 months' salary, with the Claimant to produce a payslip of his last salary to compute the award
  3. 3.The damages award held to amply compensate for time lost out of employment and other general damages
  4. 4.Costs of the suit awarded to the Claimant
  5. 5.Interest at court's rates from date of award till full payment
  6. 6.Mention on 3rd May 2022 to confirm the award

Authorities

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Legislation

  • Constitution of KenyaArticles 47, 48, 159(2)(d)
  • Employment ActSections 36, 41, 41(2), 43, 44(4)(g), 45, 49(4)(b)(c)(k)
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1
  • KRA Employee Code of ConductClauses 3.17, 4.1.1, 4.1.4

Cases cited (4)

  • Catherine Muthoni Wairimu v Walter Reif (National Chairman of the Pubs, Entertainment and Restaurants Association of Kenya) & 2 others
    [2015] eKLR
  • Pamela Nelima Lutta v Mumias Sugar Co. Ltd
    [2017] eKLR
  • Kenfreight E.A. Limited v Benson K. Nguti
    (2016) eKLR Civil Appeal No. 31 of 2015
  • Loice Otieno v Kenya Commercial Bank Limited
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair termination claims under the Employment Act, 2007

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, "Felix O Siata v Kenya Revenue Authority [2022] KEELRC 256 (KLR)", Case Analysis (2022). Cause No. 1034 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/256/eng@2022-03-31

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