Josephat Otieno Kongo v Riley Services Limited [2022] KEELRC 635 (KLR)
The bottom line
#A Kenyan court ruled that even when an employer has a good reason to fire someone, skipping a fair disciplinary process makes the dismissal unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant remained on suspension until the criminal case was concluded
The Claimant was in employment until 7th August 2015 when the indefinite suspension was countermanded by the dismissal letter; he was aware of the dismissal long before the criminal case concluded
The Claimant admitted on cross-examination that he was summarily dismissed before the criminal case ended, did not deny receiving the dismissal letter, used the same postal address on leave forms, and did not exercise his right of appeal. The indefinite suspension was superseded by the dismissal letter dated 7th August 2015.
Whether the Respondent had a valid and fair reason for the summary dismissal
Yes - the Claimant's admitted negligence (leaving the yard unattended and failing to frisk the 'cleaner') justified dismissal on a balance of probabilities
The criminal standard does not apply in employment disputes; the employer need only prove the misconduct on a balance of probabilities. The Claimant's acquittal of theft did not exculpate him from negligence, which was established by his own admissions.
Whether the termination procedure was fair under Section 41 of the Employment Act
No - the disciplinary process did not meet the statutory threshold, rendering the summary dismissal unfair
The minutes were illegible, had no agenda, findings or recommendation; the committee prosecuted the Claimant but made no recommendation; the Claimant's uncontroverted evidence was that he was only called to sign minutes; the Respondent led no evidence of invitation or the right to accompaniment; and the decision was made a year later and backdated.
Whether the Claimant was entitled to salary for the suspension period
Yes - the Claimant had a legitimate expectation of payment, the disciplinary process neither found him culpable nor exculpated him, and the employer's conduct was an unfair labour practice
Following Grace Gacheri Muriithi, payment during suspension depends on the disciplinary outcome. Here the process neither exculpated nor found culpability, and the Respondent took 12 months to decide and backdated the dismissal to the suspension date, so the Court awarded salary for 11th August 2014 to 7th August 2015.
Legal principles established
#- An employer need only prove the reason for termination on a balance of probabilities, and an acquittal in criminal proceedings does not exculpate an employee from disciplinary liability
- A sham disciplinary process, such as minutes without agenda, findings or recommendation and a decision made by persons who prosecuted the employee, fails the procedural fairness test under Section 41 of the Employment Act
- It is an unfair labour practice to punish an employee for the shortcomings of the employer, including delaying a dismissal decision and backdating it to the date of suspension
Court orders
#- 1.Declaration that the termination of the Claimant's employment was unfair and unlawful for want of procedural propriety
- 2.The equivalent of 6 months' salary as compensation for unfair dismissal
- 3.Unpaid salary for the duration of suspension (11th August 2014 - 7th August 2015)
- 4.Costs of the suit
- 5.Interest at Court rates from the date of judgment till payment in full
- Jurisdiction invoked
- Original jurisdiction under the Employment and Labour Relations Court Act, 2011 (Section 12) and 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.
- Musau v Pembe Flours Mills Limited (Employment and Labour Relations Cause E596 of 2022) [2024] KEELRC 1974 (KLR)[2024] KEELRC 1974 (KLR)26 Jul 2024applied
- Nyakundi v Ready Consultancy Company Limited (Cause 720 of 2018) [2023] KEELRC 2696 (KLR)[2023] KEELRC 2696 (KLR)27 Oct 2023
- Loko v Ouma (Cause 212 of 2018) [2023] KEELRC 905 (KLR)[2023] KEELRC 905 (KLR)19 Apr 2023
- Ongori v Colour Labels Limited (Cause 1988 of 2017) [2023] KEELRC 863 (KLR)[2023] KEELRC 863 (KLR)17 Apr 2023
Cite this brief
#Cite this brief
Caselaw, "Josephat Otieno Kongo v Riley Services Limited [2022] KEELRC 635 (KLR)", Case Analysis (2022). Statement of claim dated 3rd August 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/635/eng@2022-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.