Shisumu v Agriculture, Fisheries and Food Authority (Cause 1 of 2017) [2022] KEELRC 1225 (KLR)
The bottom line
#A Kenyan court upheld the dismissal of an employee absent for 110 days, ruling that a disciplinary committee's recommendation to transfer him did not bind the employer.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissal of the claimant from employment was lawful and fair
The dismissal was lawful and fair; the respondent complied with sections 41 and 45 of the Employment Act and the reasons for dismissal were justified
The claimant was issued a show cause letter alleging 110 days' absence, responded denying the allegation, and appeared before a disciplinary committee before dismissal. The claimant alleged the attendance register was forged but led no evidence of forgery. His appeal did not address the specific unaccounted days. On a balance of probability the absence from duty was established and the procedure was fair.
Whether the claimant's legitimate expectation of transfer based on the disciplinary committee's recommendation defeated the dismissal
No - committee recommendations are only persuasive and the employer had the final say
The disciplinary committee recommended the claimant's transfer from HCD Bungoma to HCD Kimilili Depot, which the claimant took as the final disciplinary decision. The court held that the recommendations of a committee are only persuasive, and the Authority as employer was within its right to terminate the claimant's services for absence from work.
Whether the claimant is entitled to the reliefs sought
The claimant is not entitled to any of the reliefs sought since the dismissal was lawful and fair
Having found the dismissal lawful and fair, the court held the claimant not entitled to reinstatement, damages or benefits. The authorities cited by the parties on remedies of reinstatement and compensation were inapplicable in light of that finding.
Legal principles established
#- Recommendations of a disciplinary committee are only persuasive and the employer has the final say on the employee's fate
- Procedural fairness under sections 41 and 45 of the Employment Act is satisfied where reasons for dismissal are justified and a hearing is held on the same grounds
Court orders
#- 1.The claimant's claim dated November 21, 2016 is held to be without merit and is dismissed
- 2.Each party to meet its own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, sections 41, 44 and 45 invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shisumu v Agriculture, Fisheries and Food Authority (Cause 1 of 2017) [2022] KEELRC 1225 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1225/eng@2022-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.