Kenya Union of Commercial, Food and Allied Workers v National Museums of Kenya (Cause 1156 of 2016) [2023] KEELRC 282 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Validity of the reason for termination
The Respondent failed on a balance of probabilities to establish a valid and fair reason for the terminations
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.
Procedural fairness under Sections 41 and 45 of the Employment Act
The procedure was unfair in multiple respects
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.
Reinstatement as a remedy
Reinstatement was unavailable because the terminations occurred more than 3 years before suit
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.
Legal principles established
#- 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
#- 1.Declaration that termination of the grievants' employment was unfair
- 2.Declaration that the grievants are entitled to terminal dues including pension as applicable
- 3.Unpaid salary during suspension
- 4.3 months' notice pay
- 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.Interest at court rates from date of judgment till payment in full
- 7.The Claimant awarded Kshs.60,000/= as direct expenses incurred
- 8.Prayer for pending leave declined
- 9.Prayer for reinstatement declined as unavailable under Section 12(3)(vii) of the ELRC Act
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.