Warui v Transparency International (Cause 549 of 2017) [2024] KEELRC 1227 (KLR)
The bottom line
#A Kenyan court awarded a dismissed coordinator 12 months' salary because her employer fired her over trivial matters using a flawed disciplinary process.
What this practically means
#Executive summary
#Key legal issues
#Validity of the reason for summary dismissal
The dismissal was substantively unfair; the alleged misconduct (leaving a gala dinner and a ferry delay) was petty and did not amount to gross misconduct warranting dismissal
The court held the matters leading to termination were trivial: leaving a gala dinner after planned events were over, and a 15-minute ferry delay, would at most attract a verbal warning. Requiring an employee to sit through an over-extended social event could amount to servitude. The Respondent therefore lacked a valid reason for dismissal under section 43 of the Employment Act.
Procedural fairness of the disciplinary process
The process was procedurally flawed: the disciplinary committee was unlawfully constituted (Executive Director and HR Manager instead of five members) and the Executive Director acted as accuser, prosecutor and judge
The HR Policies Manual required a five-member disciplinary panel and assigned discipline to the Line Supervisor with HR; the Executive Director sidestepped both, sat on the panel with the HR Manager, and single-handedly decided termination. An improperly constituted committee cannot accord a fair hearing, as recognised in Joshua Rodney Marimba v Kenya Revenue Authority.
Admissibility of recorded conversations
The court disregarded the evidence of recordings between the Claimant and her colleagues (no certificate under section 106B of the Evidence Act having been produced, as urged by the Respondent)
The Respondent argued the transcript was inadmissible for want of a certificate under sections 78A, 106A and 106B of the Evidence Act and infringed privacy under Article 31(d). The judgment records that the Court disregarded the recorded evidence and decided the claim on the pleadings and other material.
Compensation under section 49 of the Employment Act
The Claimant was awarded the equivalent of 12 months' gross salary (Kshs. 3,000,000) plus one month's salary in lieu of notice, following D.K. Njagi Marete v Teachers Service Commission
Reinstatement was unavailable as more than three years had elapsed and the Claimant was not unemployable. The court, agreeing with Rika J in Marete, awarded the maximum 12 months' compensation under section 49(1)(c) but declined salary to the end of the fixed-term contract.
Counterclaim for losses arising from the Ollow employment fraud
The counterclaim was dismissed; the Claimant bore no liability for the Kshs. 94,966.60 paid to Mr. Ollow
The Claimant neither recruited Mr. Ollow nor participated in his recruitment. The Respondent's officials were responsible for the hire and failed to act timeously on the information; the person who benefited from the salary is known. The loss was therefore not a direct consequence of any breach by the Claimant of clause 8(g).
Legal principles established
#- An employer must have a valid and fair reason for dismissal under section 43 of the Employment Act; minor misconduct such as leaving an over-extended social function cannot justify dismissal
- A disciplinary hearing conducted by an improperly constituted panel falls short of a fair hearing
- An employee cannot be held liable for losses arising from a colleague's employment fraud where she played no role in the recruitment
Court orders
#- 1.A declaration and finding that the Claimant was wrongfully and unfairly dismissed
- 2.Compensation equivalent to 12 months' salary – Kshs. 3,000,000/-
- 3.One month's salary as notice – Kshs. 250,000/-
- 4.Costs of the suit (limited to the Claimant's claim)
- 5.Interest on the compensation and notice pay at court rates from the date of judgment till payment in full
- 6.The counterclaim is dismissed with no order as to costs
- Jurisdiction invoked
- Jurisdiction under the Employment and Labour Relations Court Act, section 12 (as argued by the Respondent on reinstatement); first-instance employment claim under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Warui v Transparency International (Cause 549 of 2017) [2024] KEELRC 1227 (KLR)", Case Analysis (2024). Memorandum of Claim dated March 6, 2017 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1227/eng@2024-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.