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ELRCDismissedNot stated in judgment (statement of claim filed 02.06.2021)· [2023] KEELRC 2948 (KLR)

Inyani v Promasidor Kenya Limited (Employment and Labour Relations Cause E001 of 2021) [2023] KEELRC 2948 (KLR)

Employment and Labour Relations Court
17 November 2023
BOByram Ongaya
2,465 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld a director's summary dismissal, finding that following proper show-cause and hearing procedures made the termination fair.

What this practically means

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Executive summary

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The claimant, employed by the respondent as Supply Chain Manager in 2011 and promoted to Supply Chain Director in 2016, was suspended on 15.03.2021 to facilitate investigations into alleged fraud and conflicts of interest following anonymous information and an investigation by Stealth Africa Consulting Limited. He was issued a show-cause letter on 24.03.2021 detailing allegations including approving payments to fictitious suppliers, receiving a kickback from a supplier's manager, and non-disclosure of interests including preparing a draft MOU with Royal Converters Limited using company time and equipment. After responding and attending a disciplinary hearing on 31.03.2021, he was summarily dismissed on 01.04.2021 for gross misconduct. He sued for declarations that the suspension and dismissal violated the Employment Act and Articles 27(5) and 41(1) of the Constitution, notice pay, 12 months' compensation, offshore payments, accrued leave, gratuity, a certificate of service and costs, total ksh 12,004,410.39. The Court found the suspension was a fair preliminary decision pending investigation, that the procedure complied with section 41 of the Employment Act, and that the reasons for termination were valid under section 43 and fair under section 45, the claimant having admitted using company time and equipment for the MOU. The Court found the claimant 100% contributed to his dismissal, held the termination not unfair in procedure and substance, found no remedy justified, dismissed the suit with costs to the respondent, and directed return of the file to the Machakos sub-registry.

Key legal issues

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01

Whether the suspension was unfair for want of particulars

Holding

Suspension was a preliminary decision pending investigation, imposed after a meeting at which the claimant was informed of the circumstances; not unfair

Reasoning

The suspension letter referred to a meeting with the CEO, MD and HRM at which the claimant was informed of information suggesting breaches of the contract and Code of Business Conduct. Investigations were intended to crystallise the allegations. The suspension was on full pay and expressly not a disciplinary sanction. The Court found no unfair procedure in its imposition.

p. 4
02

Whether the disciplinary procedure complied with section 41 of the Employment Act

Holding

Procedure was fair; the claimant received the show-cause letter with specific allegations, responded to each, and attended a disciplinary hearing

Reasoning

The claimant confirmed receiving the 24.03.2021 show-cause letter setting out detailed allegations, replied on 26.03.2021 addressing each allegation without asking for the investigation report or more time, and was invited to and attended the disciplinary hearing on 31.03.2021 with the right to be accompanied by a colleague. The Court held the prescribed notice and hearing was met.

p. 5
03

Whether the reasons for termination were valid and fair under sections 43 and 45

Holding

Reasons were valid and fair; the claimant admitted drawing an MOU with Royal Converters Limited using company time and laptop, amounting to a conflict of interest

Reasoning

The claimant admitted using the respondent's time and equipment to draft the MOU for consultancy services with a non-customer, which the Court found amounted to a design to unfairly interfere with the respondent's enterprise. Nothing on a balance of probability exculpated him. The reasons related to the respondent's operational requirements, compatibility and conduct.

p. 5
04

Remedies

Holding

None of the claimed remedies was justified; the suit collapsed

Reasoning

The notice pay and 12 months' compensation depended on declarations of unfair dismissal which failed. The offshore quarterly payments were futuristic per the claimant's own testimony. Accrued leave and gratuity claims likewise failed with the collapse of the suit. The suit was dismissed with costs.

p. 5

Legal principles established

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  • A suspension pending investigation is a preliminary decision and not a disciplinary sanction; it need not be preceded by crystallised particulars of allegations
  • Compliance with section 41 of the Employment Act is satisfied where the employee is notified of allegations, responds to a show-cause letter and attends a disciplinary hearing
  • An employee who breaches the terms and code of service may be found to have wholly contributed to his summary dismissal

Court orders

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  1. 1.The suit is dismissed with costs for the respondent
  2. 2.The Deputy Registrar to cause the court file to be returned to the Machakos Court's sub-registry forthwith

Authorities

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Legislation

  • Employment Actsection 5(2) and (3)(b)
  • Constitution of KenyaArticle 27(5)
  • Constitution of KenyaArticle 41(1)
  • Employment Actsection 41
  • Employment Actsection 43
  • Employment Actsection 45
Jurisdiction invoked
Employment and labour relations jurisdiction under the Constitution and the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Inyani v Promasidor Kenya Limited (Employment and Labour Relations Cause E001 of 2021) [2023] KEELRC 2948 (KLR)", Case Analysis (2023). Not stated in judgment (statement of claim filed 02.06.2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2948/eng@2023-11-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.