Kamande v Nairobi City Water & Sewerage Company Limited (Cause 612 of 2017) [2023] KEELRC 927 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Substantive fairness of the summary dismissal
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.
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.
Procedural fairness of the dismissal
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.
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.
Reinstatement
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.
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.
Salary during suspension
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.
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.
Legal principles established
#- 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
#- 1.Judgment entered for the Claimant against the Respondent for salary for the entire duration of suspension.
- 2.Costs of the suit to the Claimant.
- 3.Interest at court rates from date of judgment till payment in full.
- Jurisdiction invoked
- Employment and Labour Relations Court Act, 2011, Section 12; Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.