Tanui v County Public Service Board Elgeyo Marakwet County Government & another (Cause 232 of 2017) [2023] KEELRC 2168 (KLR)
The bottom line
#Kenya's Employment Court upheld a county payroll manager's dismissal, ruling an employee who stays silent at a disciplinary hearing because of a criminal case waives his right to be heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal of the Claimant was substantively justified
Yes - the payroll audit report and bank statements showed falsified payroll payments to the Claimant and his wife totalling about Kshs. 22 million, amounting to gross misconduct under section 44(4)(g) of the Employment Act
The Respondents produced a payroll audit report showing the Claimant falsified records and paid himself and his wife in different accounts. In cross-examination the Claimant confirmed receiving payments above his known salary, could not show entitlement to them, and confirmed his wife received payments from the County despite working for Uasin Gishu County. The court held any reasonable employer would have dismissed.
Whether the dismissal followed a fair procedure under sections 41 and 45 of the Employment Act
Yes - the Claimant was issued a show cause letter to his declared postal address, attended the disciplinary hearing, and declined to defend himself, waiving his right to be heard
The show cause letter dated 24/8/2017 was sent to the postal address in the Claimant's personal data. He claimed he never received it but produced no expert proof that the address was not his. He attended the hearing on 5/10/2017, as evidenced by the attendance register and minutes, but refused to comment citing a pending criminal case at Iten. The court found no requirement that he sign the minutes and that the minutes were confirmed.
Whether the Respondents had authority to exercise disciplinary control over the Claimant
Yes - under Article 235(1)(c) as read with Article 236 of the Constitution and section 59 of the County Governments Act, read with the Human Resource Policies and Procedures Manual and the Discipline Manual for the Public Service
The court cited the constitutional mandate of county governments to exercise disciplinary control over and remove persons holding county offices, and the protection against dismissal without due process, together with the County Public Service Board's statutory disciplinary powers under the County Governments Act, and found the process conformed to these provisions and the applicable public service manuals.
Legal principles established
#- The court applies the reasonable employer test when reviewing a dismissal - it does not audit the employer's reasons with a toothcomb
- A pending criminal prosecution is no bar to an employer subjecting an employee to a disciplinary hearing on the same facts
- An employee who declines to answer charges at a disciplinary hearing on the ground that the matter is in a criminal court waives his right to be heard
- He who alleges must prove; a party disputing a signature or address must prove the dispute, e.g. by expert evidence
Court orders
#- 1.The claim is found without merit and is dismissed with costs to the Respondents
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Employment and Labour Relations Court; disciplinary control over county offices under Article 235(1)(c) as read with Article 236 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tanui v County Public Service Board Elgeyo Marakwet County Government & another (Cause 232 of 2017) [2023] KEELRC 2168 (KLR)", Case Analysis (2023). Not stated in the judgment (Employment and Labour Relations Court cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2168/eng@2023-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.