Naburi v County Assembly Service Board Busia County & another (Employment and Labour Relations Cause 94 of 2021) [2023] KEELRC 2057 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Claimant was promoted to Principal Research Officer
No promotion was proved; the pay slip designation was explained by differing public service and county pay roll rankings
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.
Whether the claim was res judicata
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
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.
Whether the dismissal was lawful and fair
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
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.
Entitlement to reliefs
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
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
#- 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
#- 1.Payment of unremitted HELB deduction of Kshs. 61,861.30
- 2.Prorated 5 days worked in July 2019 salary of Kshs. 17,833.30
- 3.Certificate of service to issue under section 51 of the Employment Act
- 4.Interest at court rate from date of judgment until payment in full
- 5.Costs of the suit against the 1st Respondent only
- 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
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.