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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the termination of the Claimant's employment was procedural and fair
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
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- 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
Relief refused
#Damages for unlawful dismissal and payment of all dues, salary, benefits and allowances
The court found the dismissal was fair, procedural and for lawful cause; the heads of claim were unmerited
Reinstatement of the Claimant to work/employment
Dismissal was held lawful and procedural, so reinstatement was not granted
Kshs. 852,047.50 being unpaid remuneration per the order dated 29/9/2017
The court found terminal dues were paid upon dismissal
Declaration that the Claimant is entitled to Certificate of Service
Claim dismissed in its entirety
Costs
The claim is dismissed with costs to the Respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The claim is therefore found without merit and is hereby dismissed with costs.
In conclusion the Court finds and holds that the Claimant's dismissal was procedural, fair and for lawful cause.
It has often been stated by this court that the fact that an employee is undergoing criminal prosecution is no barrier to his or her employer subjecting him or her to disciplinary hearing on the same facts.
for termination to pass the fairness test, it must be shown that there was not only substantive justification for termination but also procedural fairness.
The Court is of the view that there was no requirement for the Claimant to sign the minutes and the ones in the court file were confirmed.
In this case the Claimant has not called any expert witness to proof that the signature was not his and that that address was not his too.
Issues in the judgment
#The judgment does not state the cause number, the parties' full names, or the neutral citation in the extract; the parties are identified only as 'The Claimant' and 'The Respondents'.
The dismissal letter is variously dated 10th October, 2017 and 6/10/2017 within the judgment.
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.