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ELRCPartially AllowedELRC Cause at Kakamega (Statement of Claim dated 25th August 2020, amended 16th June 2022)· [2023] KEELRC 2057 (KLR)

Naburi v County Assembly Service Board Busia County & another (Employment and Labour Relations Cause 94 of 2021) [2023] KEELRC 2057 (KLR)

Employment and Labour Relations Court
27 July 2023
5,441 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld a Busia County Assembly employee's dismissal as fair, awarding him only unpaid HELB deductions and a few days' salary.

What this practically means

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Executive summary

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The Claimant, employed by the County Assembly of Busia as a Research Officer, sued over his dismissal on 5th July 2019 for gross misconduct, claiming unfair termination, 12 months' compensation, notice pay, withheld salary from April 2017 to June 2019, accrued leave, unremitted HELB, NSSF, NHIF and LAP Fund deductions, a certificate of service, and constitutional damages. The 1st Respondent (the Assembly) denied the claims, denied the alleged promotion to Principal Research Officer, asserted fair disciplinary process, and pleaded res judicata based on Kisumu ELRC Petition No. 23 of 2017 and a PSC appeal decision. The 2nd Respondent (PSC) maintained its disallowance of the appeal was lawful. The court framed four issues. It found the Claimant was never promoted, relying on pay slips explained by payroll ranking differences. It held the suspension and disciplinary process issues res judicata, having been decided in the Kisumu petition. On the merits, applying sections 43 and 45 of the Employment Act and the reasonable employer test from British Leyland v Swift, the court found valid reasons for dismissal and that the employer met the section 41 threshold, the Claimant having declined to attend two disciplinary hearings despite being availed particulars. The dismissal was held lawful and fair. Only two heads succeeded: unremitted HELB deductions of Kshs. 61,861.38 and conceded 5 days' prorated salary of Kshs. 17,833.33, plus a certificate of service under section 51, interest, and costs against the 1st Respondent only. NSSF, NHIF and LAP Fund claims were referred to the statutory bodies. A 30-day stay was granted.

Key legal issues

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01

Whether the Claimant was promoted to Principal Research Officer

Holding

No promotion was proved; the pay slip designation was explained by differing public service and county pay roll rankings

Reasoning

The Claimant produced no contract evidencing promotion and relied only on a pay slip designation. The Respondent explained this arose from the public service system's different ranking from county payroll rankings. No interview, assessment or other promotion process was evidenced, so the court found he remained a Research Officer on scale 10.

p. 5
02

Whether the claim was res judicata

Holding

Issues on the suspension, show cause and disciplinary process already determined in Kisumu ELRC Petition No. 23 of 2017 (consolidated with No. 42 of 2017) were res judicata; only validity of reasons and section 41 compliance post-termination remained live

Reasoning

The Kisumu judgment had considered the same complaints about the show cause, charge sheet and disciplinary process and upheld their constitutionality. Those issues could not be relitigated. The court confined itself to whether valid reasons existed for the eventual dismissal and whether section 41 was complied with.

p. 5
03

Whether the dismissal was lawful and fair

Holding

Yes - valid reasons existed (gross misconduct including absenteeism, abusive language, unauthorised press conference and disclosure of confidential information) and the procedure under section 41 was met

Reasoning

The employer issued show cause letters, availed particulars and documents, and invited the Claimant to two disciplinary hearings which he declined to attend while on suspension. Applying the reasonable employer test, the reasons would have led any reasonable employer to dismiss. The PSC also upheld the dismissal on appeal.

p. 9
04

Entitlement to reliefs

Holding

Only unremitted HELB deductions of Kshs. 61,861.38 and conceded 5 days' prorated salary of Kshs. 17,833.33 awarded, plus certificate of service; all other reliefs refused

Reasoning

Having been fairly dismissed, the Claimant got no compensation, notice pay or withheld salary. Statutory dues (NSSF, NHIF, LAP Fund) must be pursued with the statutory bodies. HELB arrears were proved on the statement produced, and the 1st Respondent conceded the 5 days' pay.

Legal principles established

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  • A claim already adjudicated, including the validity of a show cause and disciplinary process, is res judicata in a subsequent suit on the termination
  • The employer bears the burden of proving valid reasons and fair procedure for termination under sections 43 and 45 of the Employment Act, judged on the reasonable employer test
  • An employee who declines to attend disciplinary hearings despite being given particulars and opportunity cannot later complain of procedural unfairness
  • Claims for refund of unremitted NSSF, NHIF and pension contributions should be pursued with the statutory bodies which have their own recovery mechanisms

Court orders

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  1. 1.Payment of unremitted HELB deduction of Kshs. 61,861.30
  2. 2.Prorated 5 days worked in July 2019 salary of Kshs. 17,833.30
  3. 3.Certificate of service to issue under section 51 of the Employment Act
  4. 4.Interest at court rate from date of judgment until payment in full
  5. 5.Costs of the suit against the 1st Respondent only
  6. 6.Stay of 30 days granted on application by the 1st Respondent, with typed and certified copies of proceedings, judgment and decree to be availed to the Claimant

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 45(1) and 45(2)
  • Employment ActSection 51
  • NSSF ActNo. 45 of 2023 (as stated in judgment)

Cases cited (4)

  • British Leyland UK Limited v Swift
    (1981) I.R.L.R 91
  • Simiyu v Nzoia Sugar Company Limited
    (2022) eKLR
  • Lawrence Ngula Kakilingi v Bobs Sandwich Bar Limited
    (2018) eKLR
  • Kisumu ELRC Petition No. 23 of 2017 (consolidated with No. 42 of 2017)
Jurisdiction invoked
Employment and labour relations jurisdiction under Article 162(2) of the Constitution and the Employment Act (Sections 41, 43, 45, 51 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, "Naburi v County Assembly Service Board Busia County & another (Employment and Labour Relations Cause 94 of 2021) [2023] KEELRC 2057 (KLR)", Case Analysis (2023). ELRC Cause at Kakamega (Statement of Claim dated 25th August 2020, amended 16th June 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2057/eng@2023-07-27

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