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ELRCPartially AllowedNot stated in the judgment as provided· [2023] KEELRC 1283 (KLR)

Misigo v Athi River Water Services Board (Cause 1157 of 2017) [2023] KEELRC 1283 (KLR)

Employment and Labour Relations Court
31 May 2023
JRJames Rika
4,570 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld an HR manager's summary dismissal for leaking confidential documents, awarding him only terminal dues of Kshs 1.99 million.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent State Corporation from 4th June 2007 and rising to Head of Corporate Services earning Kshs 435,000 monthly, was suspended on 13th April 2017 over alleged leakage of confidential personnel records to third parties, and dismissed summarily with effect from 11th July 2017 following a disciplinary hearing on 8th June 2017. He sued for declarations that suspension and dismissal were unfair and unlawful, reinstatement, or in the alternative terminal dues, anticipated salary for the 15 months remaining on his contract, and 12 months' damages. The Respondent maintained the dismissal followed its HR Manual and the Employment Act. The court framed three issues: valid reason, procedural fairness, and remedies. It held that disclosure of confidential documents from the CEO's file, kept in a safe in the Claimant's office and traced to Petitions by activist Okiya Omtatah Okoiti, breached the trust and confidence underpinning the employment relationship; the Claimant's denials, including his contradictory evidence about jumping the premises fence, were rejected as gross misconduct. However, the performance-based charge was unsupported by appraisal evidence and could not stand. Procedure was found to conform to sections 41 and 45 of the Employment Act and the Manual. The court awarded terminal dues only – withheld basic salary of Kshs 1,340,000, gratuity and 21 days' leave, total Kshs 1,989,000 with interest – but declined reinstatement, damages, and anticipatory salary, holding the Claimant authored his own premature termination. Each party was to bear its own costs. Judgment was delivered on 31st May 2023 by James Rika, Judge.

Key legal issues

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01

Whether termination was substantively justified

Holding

Yes, under sections 43, 44(4) and 45 of the Employment Act and clause 12.7 of the HR Manual, save that the performance-based charge was not established

Reasoning

The Disciplinary Committee found photocopies of confidential contract documents entrusted to the Claimant in a Petition by Okoiti. The Claimant, custodian of the safe containing the CEO's file, could not explain how missing folios reached the Petitioner. His denial of being custodian was found misleading. The performance charge had no appraisal evidence and did not qualify as a valid reason.

p. 7
02

Whether termination was procedurally fair

Holding

Yes; the process substantially conformed to the Employment Act and the HR Manual

Reasoning

The Claimant was suspended with reasons, issued a show-cause letter, granted an extension to reply, notified of the hearing, informed of his right to be accompanied by an employee or trade union representative, and participated fully in the hearing. The court found no fundamental departure from the prescribed procedure.

p. 7
03

Remedies payable on lawful summary dismissal

Holding

Terminal dues up to the date of dismissal payable: withheld basic salary for April–July 2017, gratuity and 21 days annual leave; no reinstatement or damages

Reasoning

Under section 18(4) of the Employment Act an employee lawfully summarily dismissed must be paid all monies due up to dismissal. The Claimant remained an employee until 11th July 2017. Since termination was fair, reinstatement and damages were unavailable, but the promised terminal dues were granted.

p. 8

Legal principles established

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  • An employee undergoing a disciplinary process remains an employee until the contract is terminated; monies due up to dismissal must be paid on lawful summary dismissal
  • An employee is not required to be heard before suspension
  • Disclosure of confidential employer information by a senior employee in a position of trust justifies summary termination

Court orders

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  1. 1.A declaration that termination was fair
  2. 2.The Respondent to pay the Claimant terminal dues as offered in the letter of termination, comprising withheld arrears of basic salary at Kshs 1,340,000; gratuity at Kshs 415,000; and 21 days of annual leave at Kshs 234,000 – total Kshs 1,989,000
  3. 3.Interest granted at court rate from the date of Judgment till payment in full
  4. 4.No order on costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 44(4) and 45 applied)

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, "Misigo v Athi River Water Services Board (Cause 1157 of 2017) [2023] KEELRC 1283 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1283/eng@2023-05-31

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