Tome v Bungoma County Assembly Service Board(Casb & 2 others (Cause E011 of 2022) [2024] KEELRC 627 (KLR)
The bottom line
#Bungoma County Assembly wrongfully dismissed its employee; the court awarded him over Kshs 2.5 million because the employer broke its own disciplinary rules.
What this practically means
#Executive summary
#Key legal issues
#Substantive fairness of the summary dismissal
No valid reason for dismissal was proved; the show cause letter alleged theft of a file and disclosure of confidential information without particulars, and the burden of evidence was wrongly shifted to the claimant
Under section 43 of the Employment Act the employer must prove the reasons for termination. The show cause letter was ambiguous, giving no particulars of the file allegedly stolen, the confidential information disclosed, to whom, or when. The dismissal letter introduced a new allegation of prior discipline issues never put to the claimant. The court applied the reasonable employer test from British Leyland v Swift and found no reasonable employer would have dismissed on such vague, uninvestigated grounds, compounded by the High Court's finding of bad faith in JR E1093 of 2020.
Procedural fairness of the summary dismissal
Dismissal was procedurally unfair: no investigation report, no Staff Advisory Committee, no invitation to a hearing, minutes of the disciplinary meeting unauthenticated, and the Board usurped the investigative role and acted as complainant
Regulation 50 of BCASR mandatorily requires written particulars, investigation by a lawful authority, and a report before penalty. Section 29 of the County Assembly Service Act obliges the Board to establish a Staff Advisory Committee to advise on termination and interdiction, but the Board bypassed it without evidence. No invitation letter to the disciplinary hearing was produced, minutes were confirmed seven months later by the Chairperson alone, and the Board considered matters not in the show cause letter, violating section 41 of the Employment Act and Article 47 fair administrative action.
Whether reinstatement was available
Reinstatement was available within three years but refused as compensation was the appropriate remedy given the broken trust relationship and the bar on specific performance of service contracts
The court acknowledged the three-year reinstatement window under section 12 of the ELRC Act had not lapsed, but applying section 49(4) factors - the common law bar on specific performance, the escalated litigation between the parties showing breakdown of trust, the filled position and the claimant's age - it exercised its discretion to award maximum 12 months' compensation instead.
Whether the interdiction was ultra vires
The interdiction was within the Board's mandate as the Clerk was a member of the Board authorised to act for it, being a permitted response to criminal charges under the Discipline Manual
The claimant argued the 3rd Respondent acted unilaterally without Board sanction under Regulation 46. The court held the Board acts through its agents, the Chairperson or Secretary, and the interdiction letter followed a DCI letter reporting the claimant's arrest and charge, consistent with Section 4.2 of the Discipline Manual 2016 permitting interdiction where an officer is charged in criminal proceedings.
Legal principles established
#- An employer must prove the reasons for termination and provide unambiguous particulars of the allegations; failure to do so renders the termination unfair under sections 43 and 45 of the Employment Act
- A public employer must follow its own mandatory internal disciplinary procedures, including investigation by a Staff Advisory Committee and an investigation report, before imposing a penalty
- Submissions are not pleadings; claims raised only in submissions cannot be awarded
Court orders
#- 1.Declaration that the termination of the claimant's employment was unlawful and unfair
- 2.One month notice pay of Kshs. 187,870/-
- 3.Compensation equivalent of 12 months' gross salary of Kshs. 2,254,440/-
- 4.Costs of Kshs. 150,000/- to the claimant
- 5.All amounts payable by the 1st Respondent within 30 days, failing which interest at court rate from date of judgment until full payment
- Jurisdiction invoked
- Employment and Labour Relations Court Act, Section 12 (unfair termination claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tome v Bungoma County Assembly Service Board(Casb & 2 others (Cause E011 of 2022) [2024] KEELRC 627 (KLR)", Case Analysis (2024). ELRC Claim dated 10th May 2022 (Bungoma/Kakamega). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/627/eng@2024-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.