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ELRCPartially AllowedCause No 612 of 2017· [2023] KEELRC 927 (KLR)

Kamande v Nairobi City Water & Sewerage Company Limited (Cause 612 of 2017) [2023] KEELRC 927 (KLR)

Employment and Labour Relations Court
24 April 2023
6,277 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a water company unfairly dismissed its employee, awarding suspension salary and costs, but refusing reinstatement and future salary.

What this practically means

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Executive summary

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The Claimant, a Meter Reader with the Respondent water company, was summarily dismissed on 18th September 2014 over allegations that he irregularly processed and moved Meter No. 12-31280 to a customer at Mwiki and handled customer money (Kshs.6,000). He sought reinstatement, salary and benefits from suspension to date, and costs. The court framed two issues: whether the summary dismissal was fair, and whether the Claimant was entitled to the reliefs sought. On substance, the court found the Respondent's own investigations inconclusive and contradictory: the audit confirmed the payments and receipts were genuine, no one could be fixed with removing the meter from an accessible store, the Claimant was never arrested or charged, and the HR Manual did not classify payment for third-party services as gross misconduct. The alleged admission in a police statement was never produced in court. On procedure, the disciplinary committee deferred the case for further investigation but then dismissed the Claimant without inviting him to the subsequent hearings on 15th July 2014 and 26th September 2017, without availing the investigation reports to him or the court, condemning him unheard twice. The dismissal was found both substantively unjustifiable and procedurally unfair. Reinstatement was refused under the three-year rule in Section 12(3)(vii) of the ELRC Act. Salary for the suspension period was awarded, the Respondent having breached paragraph 8.24 of its HR Manual by keeping the Claimant on indefinite suspension, but the claim for salary and benefits up to the date of judgment was disallowed as anticipatory earnings. Judgment was entered for the Claimant with costs and interest.

Key legal issues

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01

Substantive fairness of the summary dismissal

Holding

The Respondent failed to prove valid and fair reasons; allegations of forgery and meter removal were not established and the only outstanding charge (receipt of Kshs.6,000) was not gross misconduct under the HR Manual.

Reasoning

The investigations by Adigora and Ouma were inconclusive and recommended further investigation which never took place. The audit confirmed the payments and receipts were genuine and the money accounted for. The Claimant was never arrested or charged, and the HR Manual did not list payment for services on behalf of third parties as gross misconduct. The alleged admission was never produced in court.

p. 9
02

Procedural fairness of the dismissal

Holding

The procedure contravened Section 45(2) of the Employment Act; the Claimant was condemned unheard when the Committee met on 15th July 2014 and again on 26th September 2017 without inviting him or availing investigation reports.

Reasoning

After deferring the case for further investigation to ensure fairness, the Respondent was obliged to keep the Claimant apprised and invite him to subsequent hearings. It did neither, withheld the investigation reports from both the Claimant and the court, and relied on prior minutes 'hook, line and sinker'. The appellate process did not cure the defect because the new hearing was again conducted in his absence.

p. 12
03

Reinstatement

Holding

Refused; barred by the three-year rule under Section 12(3)(vii) of the ELRC Act given the dismissal in 2014 and suit filed in 2017.

Reasoning

Reinstatement under Section 49(3)(a) of the Employment Act read with Section 12(3)(vii) of the ELRC Act is discretionary and may only be ordered within three years of dismissal. The Claimant took considerably long to file suit, expressed ambivalence on the stand, and counsel did not urge the remedy forcefully.

p. 13
04

Salary during suspension

Holding

Claimant awarded salary for the suspension period; the Respondent breached its own HR Manual by suspending him beyond the prescribed 90 days plus 30-day extension without reinstatement.

Reasoning

Paragraph 8.24 of the HR Manual, 2013 caps suspension at 90 days with a 30-day extension, after which reinstatement was mandatory. The Claimant was kept on suspension for about 7 months. The court found the salary due for the last 3 months beyond the permitted period and the withheld salary for the first 4 months recoverable in the interest of justice.

p. 13

Legal principles established

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  • Termination must be both substantively justifiable and procedurally fair.
  • The employer bears the burden of proving valid and fair reasons and fair procedure on a balance of probabilities.
  • Retaining an employee on indefinite suspension contrary to the employer's own Human Resource Manual is antithetical to fair labour practice.
  • Section 41 of the Employment Act prescribes a mandatory notification-and-hearing procedure; condemning an employee on un-availed investigation reports without invitation violates it.

Court orders

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  1. 1.Judgment entered for the Claimant against the Respondent for salary for the entire duration of suspension.
  2. 2.Costs of the suit to the Claimant.
  3. 3.Interest at court rates from date of judgment till payment in full.

Authorities

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Legislation

  • Employment ActSections 41, 43(1), 43(2), 44(4), 44(4)(e), 45, 45(2), 45(2)(a)(b)(c), 49(1)(c), 49(3)(a)
  • Employment and Labour Relations Court ActSection 12(3)(vii)
  • Water ActNot specified (compromise of matter)
  • Constitution of KenyaArticles 159(2)(d), 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (21)

  • Evans Mogute Nyaundi V China Road & Bridge Corporation (K) Ltd
    eKLR
  • Angela Wokabi Muoki V Tribe Hotel Ltd
    (2016) eKLR
  • R V Board of Governors Our Lady of Victory Girls Secondary School Kapnyeberai & another ex parte Korir Kipyego & another
    (2015) eKLR
  • O' Reilley V Mackman
    (1983) 2 AC
  • Alphonse Mghangha Mwachanya V Operation 680 Ltd
    (2013) eKLR
  • Kenya Revenue Authority V Reuwel Waithaka Gitahi & 2 others
  • Kenya Power and Lighting Co. Ltd V Aggrey Lukorito Wasike
    (2017) eKLR
  • Kenfreight (EA) Ltd V Benson K. Nguti
    (2019) eKLR
  • Mary Chemweno Kiptui V Kenya Pipeline Co. Ltd
    (2014) eKLR
  • Kenya Plantation & Agriculture Workers Union V Unilever Tea
    (2021) eKLR
  • Judicial Service Commission V Gladys Boss Shollei
    (2014) eKLR
  • Timothy Gakere Gachaga & 2 others V Kenya Marine Contractors & another
    (2017) eKLR
  • Meshack Onguti V Kenyatta National Hospital & 2 others
    (2018) eKLR
  • Sotik Highlands Tea Estates Ltd V Kenya Plantations & Agriculture Workers Union
    (2017) eKLR
  • Walter Ogal Anuro V Teachers Service Commission
    (2013) eKLR
  • Naima Khamis V Oxford University Press (EA) Ltd
    (2017) eKLR
  • Pius Machafu Isindu V Lavington Security Guards
    (2017) eKLR
  • Postal Corporation of Kenya V Andrew K. Tanui
    (2019) eKLR
  • Kenya Airways Ltd V Aviation & Allied Workers Union Kenya & 3 others
    (2014) eKLR
  • DK Njagi Marete V Teachers Service Commission
    (2020) eKLR
  • Elizabeth Wakanyi Kibe V Telkom Kenya Ltd
    (2014) eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act, 2011, Section 12; 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, "Kamande v Nairobi City Water & Sewerage Company Limited (Cause 612 of 2017) [2023] KEELRC 927 (KLR)", Case Analysis (2023). Cause No 612 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/927/eng@2023-04-24

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