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ELRCDismissedNot stated in the judgment as extracted· [2024] KEELRC 555 (KLR)

Mutula v Kenya Revenue Authority (Cause E883 of 2021) [2024] KEELRC 555 (KLR)

Employment and Labour Relations Court
8 March 2024
SRStella Rutto
6,008 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld KRA's dismissal of an employee for repeated absence without permission, confirming employers win when they follow proper procedure.

What this practically means

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Executive summary

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The Claimant, a Kenya Revenue Authority officer in the Domestic Taxes Department, was summarily dismissed on 13th October 2021 for absenteeism, initially alleged at 81 days and ultimately found to be 48 working days between January and June 2021. He sued for declarations of unfair termination, reinstatement, notice pay, twelve months' compensation, withheld salary, discrimination compensation, leave pay and pension benefits. The Respondent maintained that due process was followed, relying on user log-in data, email correspondence and the testimony of four witnesses including two line managers and an ICT officer. The court framed three issues: valid reason, procedural fairness, and reliefs. On substance, it applied Section 43 and 45 of the Employment Act and followed the Court of Appeal in Kenya Revenue Authority v Reuwel Waithaka Gitahi, holding that the employer needed only to prove on a balance of probability reasons it genuinely believed to exist. The Claimant's own correspondence admitting absences for family issues and illness without medical certificates established a pattern of absence without lawful authority, a summary dismissal ground under Section 44(4)(a). On procedure, applying Postal Corporation of Kenya v Andrew K. Tanui, the court found the show cause letter, written response and disciplinary hearing with rights of accompaniment satisfied Section 41. The Claim was dismissed in its entirety with each party bearing its own costs.

Key legal issues

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01

Whether there was a valid and fair reason for termination

Holding

Yes - a pattern of absence without permission or lawful cause, established through email correspondence and admitted absences, satisfied Section 43 on a balance of probability

Reasoning

The court relied on the Claimant's own letters and emails admitting absence for family issues and illness without medical certification, plus warnings from supervisors, to find a pattern of absenteeism without lawful authority. It held the employer did not need to prove the exact 48 days, only reasons genuinely believed to exist, and that absence without leave is a summary dismissal ground under Section 44(4)(a).

p. 11
02

Whether the procedure under Section 41 was complied with

Holding

Yes - show cause letter, response, disciplinary hearing with right to accompaniment and to present evidence satisfied the four elements in Postal Corporation of Kenya v Andrew K. Tanui

Reasoning

The Claimant was notified of the allegations by a show cause letter, responded in writing, was invited to a hearing on 25th August 2021 with the right to be accompanied by a fellow employee and to bring documents, and was heard. There was no evidence that he requested the attendance data and it was withheld from him.

p. 12
03

Entitlement to the reliefs sought

Holding

None - having found the termination fair, all reliefs fail

Reasoning

All the reliefs, including reinstatement, compensation, notice pay, discrimination compensation and leave pay, were premised on a finding of unfair termination. That premise having failed, the reliefs could not be sustained.

p. 12

Legal principles established

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  • In termination disputes the employer need only prove on a balance of probability the reasons it genuinely believed to exist
  • Absence from work without leave or lawful authority is a ground for summary dismissal and affords a valid reason for termination
  • An employee is only entitled to sick leave with full pay upon notifying the employer and furnishing a medical certificate

Court orders

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  1. 1.Dismissal of the Claim in its entirety
  2. 2.Each party to bear its own costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 over a claim of unfair termination

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, "Mutula v Kenya Revenue Authority (Cause E883 of 2021) [2024] KEELRC 555 (KLR)", Case Analysis (2024). Not stated in the judgment as extracted. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/555/eng@2024-03-08

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