Sitienei v Kenya Agricultural and Livestock Research Organization (Cause 53 of 2019) [2022] KEELRC 1120 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Validity and fairness of the reason for dismissal
The respondent did not prove on a balance of probability that the alleged sexual harassment justified the dismissal, as the complainant never testified and her email remained unverified allegations
The complainant's affidavit was withdrawn and she did not testify before any disciplinary committee or the court. Her email of 9th September 2019, the only proof, was never tested by cross-examination. The Director General dismissed the claimant two days after receiving the report without hearing the complainant or the claimant. Unverified allegations cannot satisfy the employer's burden under sections 43 and 45 of the Employment Act.
Procedural fairness of the dismissal
The dismissal breached section 41 of the Employment Act and clause 11.7.1 of the respondent's HR Manual because the claimant was given no notice or hearing
RW-1 admitted under cross-examination that the claimant was neither issued a show-cause letter nor summoned to any oral hearing before dismissal. Section 41 mandatorily requires an employer to explain the reasons and hear representations. The respondent's own HR Manual upholds natural justice and fair administrative action, which were flouted. The availability of an appeal mechanism does not cure the absence of a prior hearing.
Appropriate remedies for unfair termination
Reinstatement refused as impracticable; claimant awarded one month's notice pay and 12 months' salary as compensation; defamation damages declined
Under section 12(3) of the ELRC Act reinstatement is available within three years, but it is discretionary and exceptional. The claimant's position had been filled, making reinstatement impracticable. Given his 10 years of service without warnings and the employer's failure to prove misconduct, the maximum 12 months' compensation under section 49 was warranted. Defamation damages failed for want of pleading and proof.
Legal principles established
#- An employer must, before terminating on grounds of misconduct, explain the reason to the employee and hear his representations as required by section 41 of the Employment Act
- Reinstatement is a discretionary remedy, not an automatic right, allowed only in exceptional circumstances
- An employer bears the burden of proving on a balance of probability that the reason for dismissal was valid and fair; unverified allegations not tested before a disciplinary forum or the court do not suffice
Court orders
#- 1.Declaration that the summary dismissal of the Claimant was unfair within the meaning of section 45 of the Employment Act
- 2.One month's salary in lieu of notice (Kshs. 151,209)
- 3.Twelve months' salary as compensation for the unfair termination (Kshs. 1,814,508)
- 4.Total award of Kshs. 1,965,717 subject to statutory deduction, plus costs and interests at court rates from the date of judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution and Section 12 of the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sitienei v Kenya Agricultural and Livestock Research Organization (Cause 53 of 2019) [2022] KEELRC 1120 (KLR)", Case Analysis (2022). Cause No 53 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1120/eng@2022-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.