Oseko v Kenya Revenue Authority (Cause 237 of 2020) [2024] KEELRC 262 (KLR)
The bottom line
#Kenya's Employment Court upheld KRA's dismissal of a senior officer for negligence, ruling neglect of duty is gross misconduct justifying summary dismissal without compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether there was a valid and fair reason for the termination of the Claimant's employment
Yes - neglect of duty, a form of gross misconduct under section 44(4)(c) of the Employment Act, was established; the Claimant failed to conduct due diligence before removing the tax payer's VAT obligation and the court inferred a calculated scheme to avoid knowledge of the North of Nairobi station's assessment
The Respondent alleged that the Claimant removed VAT obligations for City Printing Works (K) Limited without due diligence - without the final Verification Form (VAT 12), an audit report, or confirmation of tax arrears. The Claimant relied only on a compliance certificate from North of Nairobi and had facilitated the change of the tax payer's PIN base to his own station. The court found this conduct indicative of a calculated scheme, admitted negligence at the hearing, and held the reason for termination valid and fair under section 43 of the Employment Act.
Whether the termination was procedurally fair under section 41 of the Employment Act
Yes - the Claimant received a notice to show cause, responded, was invited to and attended a disciplinary hearing, understood the charges, and exercised a right of appeal whose outcome was sent to his address
The court traced the sequence: show cause letter of 29th November 2018, the Claimant's response of 4th December 2018, invitation to hearing of 6th December 2018, hearing on 14th December 2018 and termination on 15th February 2019. The disciplinary manual excepted the investigation report from documents to be supplied; the letters were validly signed on behalf of the Deputy Commissioner - Human Resource under delegated authority; and the appeal outcome was despatched to the Claimant's last known postal address. Procedural fairness was satisfied.
Whether the Claimant was entitled to the reliefs sought including reinstatement and 12 months' salary compensation
No - the claim was dismissed in its entirety with costs; the Respondent had paid all terminal dues and the counterclaim was indicated as settled
Having found both substantive justification and procedural fairness, the court held the claim to be without merit. The Respondent confirmed all terminal dues and certificate of service were given, and stated it had no outstanding claim against the Claimant. The Respondent submitted that the counterclaim had since been settled. The court therefore dismissed the claim with costs to the Respondent.
Legal principles established
#- Under section 44(4)(c) of the Employment Act, 2007, neglect of duty is a listed ground of gross misconduct which can lead to summary dismissal, and where a valid and fair reason exists under section 43 the termination is substantially justified
- An employer need not supply the employee with the investigation report before a disciplinary hearing where the applicable disciplinary manual expressly excepts the investigation report from documents to be supplied
- Where an appeal outcome is sent to an employee's last known postal address and is returned unclaimed, the rule of postal postage applies and the employee cannot claim the appeal was not determined
- Both substantive and procedural fairness are required for a termination to pass the fairness test
Court orders
#- 1.The Claimant's claim was dismissed
- 2.The Claimant was ordered to pay the Respondent's costs of the suit
- 3.It was so ordered
- Jurisdiction invoked
- Employment and labour relations dispute under Article 162(2) of the Constitution (ELRC jurisdiction); termination of employment challenged under the Employment Act, 2007 and Articles 41, 47 and 25(c) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oseko v Kenya Revenue Authority (Cause 237 of 2020) [2024] KEELRC 262 (KLR)", Case Analysis (2024). ELRC Cause (Nairobi) - Claimant's statement of claim dated 19th November, 2019 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/262/eng@2024-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.