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ELRCDismissedNot stated in the judgment (Employment and Labour Relations Court cause)

Tanui v County Public Service Board Elgeyo Marakwet County Government & another (Cause 232 of 2017) [2023] KEELRC 2168 (KLR)

Employment and Labour Relations Court of Kenya
22 September 2023
5,157 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant, formerly the county payroll manager of Elgeyo Marakwet County, sued for damages, reinstatement, unpaid court-ordered remuneration of Kshs. 852,047.50 and a certificate of service, alleging unlawful suspension and summary dismissal on 10th October 2017. The Respondents, invoking Articles 235(1)(c) and 236 of the Constitution and section 59 of the County Governments Act, contended that the dismissal followed due process after a payroll audit revealed falsification of payroll records and payments to the Claimant and his wife amounting to about Kshs. 22 million. The court framed one issue: whether the termination was procedural and fair. Applying the reasonable employer test, it held the audit report and bank statements established gross misconduct under section 44(4)(g) of the Employment Act, as the Claimant confirmed receiving payments above his salary and could not justify them. On procedure, the court found the show cause letter was sent to the Claimant's declared postal address and that he attended the disciplinary hearing on 5/10/2017 but declined to defend himself on the ground that the matter was before a criminal court at Iten, thereby waiving his right to be heard. Applying Walter Ogal Anuro v Teachers Service Commission, the court held the dismissal was substantively and procedurally fair and for lawful cause. The claim was dismissed in its entirety with costs to the Respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the termination of the Claimant's employment was procedural and fair

Key legal issues

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01

Whether the summary dismissal of the Claimant was substantively justified

Holding

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

Reasoning

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.

p. 9
02

Whether the dismissal followed a fair procedure under sections 41 and 45 of the Employment Act

Holding

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

Reasoning

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.

p. 10
03

Whether the Respondents had authority to exercise disciplinary control over the Claimant

Holding

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

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The claim is found without merit and is dismissed with costs to the Respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 10

Reinstatement of the Claimant to work/employment

Dismissal was held lawful and procedural, so reinstatement was not granted

p. 10

Kshs. 852,047.50 being unpaid remuneration per the order dated 29/9/2017

The court found terminal dues were paid upon dismissal

p. 10

Declaration that the Claimant is entitled to Certificate of Service

Claim dismissed in its entirety

p. 10

Costs

The claim is dismissed with costs to the Respondents

Quotable passages

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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.
p. 10Final orders - dismissal of claim
In conclusion the Court finds and holds that the Claimant's dismissal was procedural, fair and for lawful cause.
p. 10Conclusion on fairness of dismissal
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.
p. 10Criminal proceedings and disciplinary process
for termination to pass the fairness test, it must be shown that there was not only substantive justification for termination but also procedural fairness.
p. 10Fairness test for termination (quoting Walter Ogal Anuro)
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.
p. 10Disciplinary hearing minutes
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.
p. 10Burden of proof on disputed signature and address

Issues in the judgment

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minor

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'.

minor

The dismissal letter is variously dated 10th October, 2017 and 6/10/2017 within the judgment.

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, "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.