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ELRCPartially AllowedNot stated in the judgment (Memorandum of Claim filed 15th June 2016)· [2023] KEELRC 282 (KLR)

Kenya Union of Commercial, Food and Allied Workers v National Museums of Kenya (Cause 1156 of 2016) [2023] KEELRC 282 (KLR)

Employment and Labour Relations Court
6 February 2023
9,224 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~37 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled National Museums of Kenya unfairly fired seven staff over unproven theft claims, awarding them pay and compensation.

What this practically means

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Executive summary

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The Claimant union sued on behalf of seven grievants (six Ticket Clerks and one Database Administrator) summarily dismissed by the National Museums of Kenya in November 2015 following allegations of embezzlement through the e-ticketing system, with losses variously quantified up to Kshs.9,432,350/=. The Respondent defended the dismissals as lawful gross misconduct grounded on an Internal Audit Report and a KAPS systems report. The court found the terminations unfair on both substance and procedure. Substantively, the audit report attributed no specific loss to any grievant, the KAPS Report could not identify who issued deletion commands, figures changed between show cause and dismissal letters, and the manual registers underpinning the figures were never produced. Procedurally, the grievants were denied the audit reports on which charges were founded, were not informed of the right to be accompanied at the hearing, and the dismissal decision was made a year after the hearing by a differently constituted committee that heard only the employer afresh. The suspension also ran for over 18 months contrary to the Respondent's own six-month rule. Reinstatement was refused as unavailable beyond the statutory three-year window under Section 12(3)(vii) of the ELRC Act. The court declared the terminations unfair and awarded terminal dues including pension, unpaid suspension salary, three months' notice pay, compensation of two to three months' salary per grievant under Section 49(1)(c), interest, and Kshs.60,000/= in direct expenses. The claim for pending leave was declined for want of evidence.

Key legal issues

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01

Validity of the reason for termination

Holding

The Respondent failed on a balance of probabilities to establish a valid and fair reason for the terminations

Reasoning

The Internal Audit Report attributed no specific loss to any grievant, the KAPS Report could not identify who issued deletion commands, and figures changed between show cause and dismissal letters. No manual registers, revenue collection forms or reconciliation documents were availed. The disciplinary committee itself doubted the accuracy of the audit data and could not apportion specific amounts to individual officers.

p. 16
02

Procedural fairness under Sections 41 and 45 of the Employment Act

Holding

The procedure was unfair in multiple respects

Reasoning

The disciplinary hearing invitations did not inform the grievants of the right to be accompanied; the evidence relied upon (audit and KAPS reports) was withheld from the grievants; the decision to dismiss was made a year later by a differently constituted committee that heard only the employer's evidence afresh; and the process lasted over 18 months in violation of the Respondent's own Terms and Conditions limiting disciplinary cases to 6 months.

p. 20
03

Reinstatement as a remedy

Holding

Reinstatement was unavailable because the terminations occurred more than 3 years before suit

Reasoning

Section 12(3)(vii) of the ELRC Act restricts reinstatement to within 3 years of termination, and the remedy is discretionary as emphasized in Kenya Airways Ltd v Aviation and Allied Workers Union. With terminations in November 2015, more than 7 years before judgment, the prayer could not issue.

p. 22

Legal principles established

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  • Termination of employment must have both substantive justification and procedural fairness to be valid
  • The burden is on the employer to prove the reason for termination, failing which the termination is deemed unfair
  • Where the allegation involves money, the employer must provide the employee the basis of the accusation to enable an appropriate response
  • Indefinite suspension without purpose or duration amounts to an unfair labour practice

Court orders

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  1. 1.Declaration that termination of the grievants' employment was unfair
  2. 2.Declaration that the grievants are entitled to terminal dues including pension as applicable
  3. 3.Unpaid salary during suspension
  4. 4.3 months' notice pay
  5. 5.Equivalent of 2 and 3 months' salary as compensation (Saningo Meshuki 2 months; Ernest Mburu 2 months; Philomena Nthenya 2 months; Julius Sankale 3 months; Sarah Wambui 2 months; Martha Kivava 3 months; Raphael Sinoyia 2 months)
  6. 6.Interest at court rates from date of judgment till payment in full
  7. 7.The Claimant awarded Kshs.60,000/= as direct expenses incurred
  8. 8.Prayer for pending leave declined
  9. 9.Prayer for reinstatement declined as unavailable under Section 12(3)(vii) of the ELRC Act

Authorities

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Legislation

  • Employment ActSections 43, 45(2)(c), 41, 49(1)(c), 49(3)(a), 49(4)
  • Employment and Labour Relations Court ActSection 12(3)(vii)
  • Constitution of KenyaArticles 159(2)(d), 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1
  • National Museums of Kenya Terms and Conditions for Museum Management StaffClauses 12.19(vii), 12.22(iv)

Cases cited (5)

  • Walter Ogal Anuro V Teachers Service Commission
    (2013) eKLR
  • Naima Khamis V Oxford University Press (E.A) Ltd
    (2017) eKLR
  • Postal Corporation of Kenya V Andrew K. Tanui
    (2019) eKLR
  • Pius Machafu Isindu V Lavington Security Guards Ltd
    (2017) eKLR
  • Kenya Airways Ltd V Aviation and Allied Workers Union
    (2014) eKLR
Jurisdiction invoked
First-instance jurisdiction under the Employment and Labour Relations Court Act, 2011 (Section 12(3)) over an unfair termination claim under the Employment Act, 2007

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, "Kenya Union of Commercial, Food and Allied Workers v National Museums of Kenya (Cause 1156 of 2016) [2023] KEELRC 282 (KLR)", Case Analysis (2023). Not stated in the judgment (Memorandum of Claim filed 15th June 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/282/eng@2023-02-06

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