Yaa & another (Suing as Administrators of the Estate of the Late Fredrick Yaa Charo - Deceased) v Kilifi County Government & another (Cause 76 of 2017) [2024] KEELRC 441 (KLR)
The bottom line
#Kenya's Employment Court ruled that leaving a suspended employee hanging indefinitely amounts to unfair termination, and awarded his estate millions in unpaid wages and dues.
What this practically means
#Executive summary
#Key legal issues
#Fairness of the suspension and failure to conclude the disciplinary process
The suspension of 30 March 2015 was never concluded and no account was rendered; the resulting termination of employment was unfair contrary to Sections 41 and 45 of the Employment Act
The court accepted that suspension to allow investigations is lawful, citing Mutwol v Moi University and Bernard Mwaura Mbuthia. However, the correlative duty of the employer is to recall the employee and either reinstate him or issue a show-cause notice. After the 2015 suspension the respondents took no action, and the deceased attained retirement age while on suspension without his case being heard or terminal dues paid, which the court held to be an unfair termination.
Entitlement to unpaid wages and terminal dues despite the employer's procedural lapse
The Estate is entitled to notice pay, suspension-period wages and wages to retirement, with pension access facilitated
Because the respondents filed no work records showing how the deceased was treated after suspension, the court accepted the claimant's figures. Wages from May 2011 to December 2016 were awarded at Kshs. 2,929,780 for lack of contrary evidence, half salary for three months' suspension at Kshs. 64,627.50, and one month's notice pay at Kshs. 43,085 under Section 35. Pension contributions to LAPROFUND were proved by the January 2012 payslip.
Time-bar defence by the 2nd respondent
The defence did not succeed; the lapse by the respondents could not defeat the Estate's accrued benefits
The 2nd respondent argued the claims were time barred and called no witness. The court did not uphold the defence, holding instead that the respondents' own failure to conclude the disciplinary process and pay dues could not deprive the deceased and his Estate of accrued employment benefits, invoking Section 18(5) of the Employment Act, 2007.
Legal principles established
#- An employer who suspends an employee has a legal duty to conclude the suspension by reinstating the employee or issuing a notice to show cause; failure to render an account renders the resulting termination unfair
- An employer's lapse in concluding a disciplinary process should not deny the employee and his Estate accrued employment benefits
Court orders
#- 1.Judgment entered for the claimants against the respondents jointly and severally
- 2.Notice pay of Kshs. 43,085
- 3.Unpaid wages during suspension of Kshs. 64,627.50
- 4.Unpaid wages from May 2011 to December 2016 of Kshs. 2,929,780
- 5.Respondents to issue letters enabling access to pension and LAPROFUND dues
- 6.Pension dues to be processed and paid within 30 days
- 7.2nd respondent to issue Certificate of Service under Section 51 of the Employment Act
- 8.Each party to bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution; transition of local authority staff under Article 176 and Section 57 of the County Government Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Yaa & another (Suing as Administrators of the Estate of the Late Fredrick Yaa Charo - Deceased) v Kilifi County Government & another (Cause 76 of 2017) [2024] KEELRC 441 (KLR)", Case Analysis (2024). Cause No 76 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/441/eng@2024-02-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.