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ELRCPartially AllowedCause No 53 of 2019· [2022] KEELRC 1120 (KLR)

Sitienei v Kenya Agricultural and Livestock Research Organization (Cause 53 of 2019) [2022] KEELRC 1120 (KLR)

Employment and Labour Relations Court
5 May 2022
5,407 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~22 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Claimant, employed from 2009 (transferred to KALRO in 2018) as a Research Scientist, was summarily dismissed on 11th September 2019 over an allegation that he sexually harassed Mrs. Candice McGladdery, a visiting South African agronomist, on 8th September 2019. He sued, seeking declarations of nullity, reinstatement, three months' notice pay, 36 months' compensation, and general damages for reputational harm. The Respondent justified the dismissal as gross misconduct under its Code of Conduct and section 44(4) of the Employment Act, and contended the suit was premature as internal appeal mechanisms were unexhausted. The court framed three issues: validity of the reason for dismissal, procedural fairness, and reliefs. On the first, the complainant never testified and her affidavit was withdrawn; her email was held to be unverified allegation, so the Respondent failed to prove a valid and fair reason on a balance of probability. On procedure, RW-1 admitted the Claimant received no notice or hearing, breaching section 41 of the Employment Act and the Respondent's own HR Manual. The dismissal was declared unfair under section 45 but not a nullity. Reinstatement was refused as the position had been filled. The court awarded one month's notice pay (Kshs. 151,209) and 12 months' salary as compensation (Kshs. 1,814,508), totalling Kshs. 1,965,717, subject to statutory deduction, plus costs and interest. Defamation damages were declined for want of pleading and proof. Judgment delivered at Nakuru on 5th May 2022 by Onesmus N. Makau J.

Key legal issues

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01

Validity and fairness of the reason for dismissal

Holding

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

Reasoning

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.

p. 7
02

Procedural fairness of the dismissal

Holding

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

Reasoning

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.

p. 9
03

Appropriate remedies for unfair termination

Holding

Reinstatement refused as impracticable; claimant awarded one month's notice pay and 12 months' salary as compensation; defamation damages declined

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 1.Declaration that the summary dismissal of the Claimant was unfair within the meaning of section 45 of the Employment Act
  2. 2.One month's salary in lieu of notice (Kshs. 151,209)
  3. 3.Twelve months' salary as compensation for the unfair termination (Kshs. 1,814,508)
  4. 4.Total award of Kshs. 1,965,717 subject to statutory deduction, plus costs and interests at court rates from the date of judgment

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)
  • Employment ActSections 6, 12, 35, 41, 43, 44(3), 44(4), 45, 49
  • Kenya Agricultural and Livestock Research ActNo. 17 of 2013
  • Employment and Labour Relations Court ActSection 12(3)
  • ELRC (Procedure) RulesRule 28(3)

Cases cited (10)

  • Samuel Kamau Macharia & Another v Kenya Commercial Bank and 2 others
    [2012] eKLR
  • Godfrey Osotsi v Amani National Congress
    [2019] eKLR
  • Postal Corporation of Kenya v Andrew K. Tanui
    [2019] eKLR
  • Elvis K Likobele v Kenya Airports Authority
    [2015] eKLR
  • Anarita Karimi Njiru v Republic
    [1979] I KLR 54
  • Mumo Matemo v Trusted Society of Human Rights Alliance
    [2013] eKLR
  • Phineas Nyagah v Gitobu Imanyara
    [2013] eKLR
  • Kenfreight (EA) Limited v Benson K. Nguti
    [2016] eKLR
  • Janet Nyandiko v Kenya Commercial Bank Limited
    [2017] eKLR
  • Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 others
    [2014] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution and Section 12 of the Employment Act

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, "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.