Mainga v Kenya Broadcasting Corporation (Cause 1281 of 2015) [2023] KEELRC 2893 (KLR)
The bottom line
#A Kenyan employer with solid evidence of misconduct still lost because it took two years to hear the employee's disciplinary case.
What this practically means
#Executive summary
#Key legal issues
#Whether the two-year delay in concluding the disciplinary process rendered the dismissal procedurally unfair
Yes. Although there was a valid basis for termination, the Respondent took over two years to hear the Claimant, which was procedurally unfair.
The Claimant was suspended in June 2012 and not heard until her dismissal in September 2014, a period of 27 months. The Respondent's own Code required disciplinary cases to be concluded within six months. The court held that such inordinate delay is untenable and that employees facing disciplinary action are entitled to a just and expeditious process. The procedural unfairness was compensated by an award of two months' salary, and the salary for the 27-month suspension period was awarded.
Whether there was substantive justification for the dismissal
Yes. The court found basis for termination and that the Claimant was culpable in the manipulation of the payroll.
The court accepted that the allegations borne out of the audit trail report had substance, and that the Claimant, who was responsible for inputting data into the payroll, was culpable in the manipulation. However, substantive justification could not cure the procedural unfairness arising from the prolonged suspension and delayed hearing.
What remedies flow from the procedural unfairness
Salary for the 27-month suspension period (Kshs. 1,144,800/-), two months' salary as compensation (Kshs. 84,800/-), costs, a certificate of service and interest from judgment.
Because the employee went unheard for 27 months, she is entitled to the salary she would have earned during that period. The procedural unfairness attracts modest compensation of two months' salary rather than the 12 months claimed. Costs follow the event as the Claimant had to seek relief from the court, and she is also entitled to a certificate of service.
Legal principles established
#- Employees facing disciplinary action are entitled to a just and expeditious process; inordinate delay in concluding a disciplinary process renders the termination procedurally unfair and the employee is entitled to salary for the period of the delay.
Court orders
#- 1.Judgment entered for the Claimant against the Respondent for unpaid salary of Kshs. 1,144,800/-
- 2.2 months' salary as compensation for unfair procedure – Kshs. 84,800/-
- 3.Costs of the suit to the Claimant
- 4.Issuance of a certificate of service
- 5.Interest at court rates on the sums in (i) and (ii) from the date of judgment till payment in full
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the ELRC (Article 41 and 47 of the Constitution; Employment Act sections 41, 43 and 45 invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mainga v Kenya Broadcasting Corporation (Cause 1281 of 2015) [2023] KEELRC 2893 (KLR)", Case Analysis (2023). Cause No 1281 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2893/eng@2023-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.