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ELRCPartially AllowedCause No E038 of 2022· [2023] KEELRC 372 (KLR)

Letambul v Samburu County Government & another (Cause E038 of 2022) [2023] KEELRC 372 (KLR)

Employment and Labour Relations Court
15 February 2023
OMOnesmus N Makau
2,769 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A county government fired a worker without proving its reasons in court, so it was ordered to pay over Kshs.1.7 million despite never defending the case.

What this practically means

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Executive summary

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The claimant, employed by Samburu County from 1st May 2013 and appointed Director of Lands, Survey and Mapping in 2015 on a permanent and pensionable basis, was summarily dismissed on 2nd September 2020 for gross misconduct arising mainly from alleged abusive social media posts, insubordination, and improper handling of Mbaringon Group Ranch land issues. The respondents were served but filed no defence and did not attend the hearing; the suit proceeded by formal proof. The court framed three issues: validity of the reasons for dismissal, fairness of the procedure, and reliefs. Applying sections 43 and 45 of the Employment Act, the court held that the employer bore the burden of proving the reason for dismissal and, having filed no defence or evidence, failed to discharge it. Although show cause letters and a committee hearing were shown, the respondents equally failed to prove adherence to section 41's fair procedure requirements, particularly given the claimant's unrebuted allegation that his accusers sat on the disciplinary body. The summary dismissal was declared unfair and unlawful. Constitutional claims under Articles 27, 35, 47 and 50 were declined under the Anarita Karimi Njeru standard for want of precise pleading and proof. Reinstatement was refused as impracticable in a hostile workplace. Salary after dismissal, exemplary damages for anguish, and special damages for defamation were all declined. The claimant was awarded notice pay of Kshs.246,110 and six months' compensation of Kshs.1,476,660, totalling Kshs.1,722,770 less statutory deductions, with costs and interest.

Key legal issues

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01

Validity of reasons for summary dismissal

Holding

The respondents failed to prove valid and fair reasons for the dismissal because they filed no defence and adduced no evidence.

Reasoning

Section 43 of the Employment Act places the burden of proving the reason for termination on the employer. Although the dismissal letter catalogued numerous allegations of gross misconduct, the respondents neither filed a defence nor appeared at the formal-proof hearing, so no evidence rebutted the claimant's assertions that the allegations were unsubstantiated and actuated by personal vendetta. The burden therefore was not discharged.

p. 5
02

Fairness of the procedure followed

Holding

The respondents failed to demonstrate adherence to section 41 of the Employment Act and to the claimant's contract.

Reasoning

While show cause letters and an appearance before the County Human Resource Management Advisory Committee were established, the claimant testified that his accusers, including Bosco Sambu, sat on the disciplinary body and that no independent investigation occurred. The respondents adduced no evidence to rebut these allegations or prove compliance with section 41, so fair procedure was not established.

p. 6
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Appropriate remedies for unfair termination

Holding

The claimant was awarded notice pay and 6 months' gross salary as compensation, with other heads of relief declined.

Reasoning

Having found the dismissal unfair and unlawful, the court considered the 7 years of service and lost expectation of working to retirement age in awarding six months' gross pay. Reinstatement was refused for want of special circumstances and practicability; constitutional and defamation claims failed on pleading and proof; salary claims after dismissal and exemplary damages lacked legal foundation.

p. 7

Legal principles established

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  • In proceedings challenging termination, the employer bears the burden of proving the reason for termination, and failure to file a defence or adduce evidence means that burden is not discharged.
  • A termination is unfair under section 45 of the Employment Act where the employer fails to prove a valid and fair reason and fair procedure.
  • Constitutional violation claims must be pleaded with reasonable precision and proved by evidence, per Anarita Karimi Njeru v Republic.
  • Reinstatement requires proof of special circumstances and practicability; a hostile workplace weighs against it.

Court orders

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  1. 1.Declaration that the claimant's summary dismissal was unfair and unlawful
  2. 2.Award of salary in lieu of notice of Kshs.246,110.00
  3. 3.Award of compensation of 6 months' gross pay, Kshs.1,476,660.00, totalling Kshs.1,722,770.00, payable less statutory deductions
  4. 4.Costs of the suit to the claimant plus interest at court rate from the date of judgment

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27(1), 35(1)(b), 41, 47, 50(1)
  • Employment ActSections 41, 42(1), 43, 44(3)-(4), 45(1)-(2)
  • Public Service Code of Conduct, 2016Section 10(9)(b)
  • ELRC (Procedure) RulesRule 28(3)

Cases cited (1)

  • Anarita Karimi Njeru v Republic
    [1979] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (claim for unfair summary dismissal by county public service employer)

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, "Letambul v Samburu County Government & another (Cause E038 of 2022) [2023] KEELRC 372 (KLR)", Case Analysis (2023). Cause No E038 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/372/eng@2023-02-15

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