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ELRCPartially AllowedNot stated in judgment· [2022] KEELRC 4123 (KLR)

KJDL v Daystar University (Cause 1850 of 2017) [2022] KEELRC 4123 (KLR)

Employment and Labour Relations Court
25 April 2022
MMM. Mbaru
3,251 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld a dishonest medical form dismissal but ordered the employer to pay notice, leave and half-salary dues, ruling the backdated termination unlawful.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a senior accountant from 1st October 2012, challenged the termination of his employment on 24th May 2017 (backdated to 29th March 2017). He alleged he was unfairly suspended, investigated and demoted over the alleged illegal insertion of a dependant in the university medical cover, whereas he had merely replaced his estranged wife with his sister, a genuine dependant, after submitting her birth certificate. He sought notice pay, outstanding leave, unpaid half salaries during the five-month suspension, compensation for loss of earnings, a certificate of service and costs. The respondent maintained the claimant had wilfully and untruthfully listed his sister as spouse in the medical declaration form contrary to the human resource policy, was taken through a lawful disciplinary process, and that the claims should be dismissed with costs. The court framed three issues: whether termination was unfair; whether reliefs should issue; and costs. It held the respondent had valid and justifiable reasons for termination under Sections 41 and 43 of the Employment Act, 2007: the claimant had declared the medical form truthful while knowing his sister was not his spouse, and his decision to decline the sanctions of demotion and a final warning frustrated his own employment. Compensation was therefore unjustified. However, the backdating of the termination was an unfair labour practice, and the claimant was entitled to notice pay of Ksh.588,558, leave pay of Ksh.63,028 and unpaid half salaries from 29th March to 24th May 2017, subject to Section 49(2) and less his Biblia Sacco loan, Sacco deductions being lawful at source under Sections 17 and 19. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether termination was for valid and justifiable reasons

Holding

Yes. The claimant falsely listed his sister as spouse on the medical cover form despite declaring its truthfulness; sanctions were legitimate under Section 43

Reasoning

The claimant admitted listing his sister MM as spouse in the medical declaration form dated 24th August 2016 in which he declared the contents true. The disciplinary committee found the misconduct proved, and the employer genuinely believed the reasons for termination existed, satisfying Section 43(2) of the Employment Act. The claimant's declining of sanctions led to frustration of his own employment.

p. 6
02

Whether due process under Section 41 was followed

Holding

Yes; the claimant was suspended, heard by a disciplinary committee, and given written and oral representations

Reasoning

Section 41 of the Employment Act requires an employee be allowed to defend himself. The claimant was suspended on 18th January 2017, appeared before the disciplinary committee on 2nd March 2017, made representations, and received sanctions. He contested and declined them; the process itself complied with the law.

p. 5
03

Whether the backdated termination date and half pay during suspension were lawful

Holding

Backdating was an unfair labour practice; half salary remained due until actual termination on 24th May 2017

Reasoning

Although the termination letter purported to take effect from 29th March 2017, employment in fact terminated on 24th May 2017 when the letter was issued. The backdating sanction was an unfair labour practice. The claimant was on half salary during suspension; the balance of Ksh.66,028 per month is due and to be credited in final tabulation.

p. 6
04

Whether Sacco loan could be offset from terminal dues

Holding

Yes; a Sacco loan secured through salary is a lawful deduction at source under Sections 17 and 19 of the Employment Act

Reasoning

The claimant had a loan with Biblia Sacco offset from salary. Under Sections 17 and 19 of the Employment Act the employer may deduct and remit amounts owed to third parties pursuant to agreements made during employment. Precedent confirms employees who join Saccos by virtue of employment are estopped from claiming such dues from the employer upon termination.

p. 6

Legal principles established

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  • An employer who genuinely believes reasons exist to justify termination acts lawfully under Section 43 of the Employment Act
  • An employer may lawfully deduct Sacco loan repayments at source from terminal dues
  • Backdating a termination date is an unfair labour practice

Court orders

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  1. 1.Judgment entered for the claimant for notice pay of Ksh.588,558
  2. 2.Leave pay of Ksh.63,028
  3. 3.Unpaid half salaries from 29th March to 24th May, 2017
  4. 4.Dues (a), (b) and (c) shall be paid if not already paid and subject to the provisions of Section 49(2) of the Employment Act, 2007
  5. 5.Dues owing shall be paid less what the claimant owes to Biblia Sacco
  6. 6.Each party shall bear own costs
Jurisdiction invoked
Employment Act, 2007 (Sections 41, 43, 49(2), 17 and 19); first-instance labour claim

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, "KJDL v Daystar University (Cause 1850 of 2017) [2022] KEELRC 4123 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4123/eng@2022-04-25

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