Mbarire v Kenya Airways Limited (Cause 2399 of 2017) [2024] KEELRC 1228 (KLR)
The bottom line
#A Kenyan court ruled Kenya Airways unfairly sacked a pilot partly for refusing an unsafe flight, letting him keep his benefits because the boss who accused him also judged him.
What this practically means
#Executive summary
#Key legal issues
#Whether the disciplinary panel was properly constituted and free of bias
The panel breached clause 17.2.3 of the Respondent's HR Manual by including Captain Githuku, who investigated the matter, authored the show cause letters and sat in the panel; the process was procedurally unfair
The Claimant's Controlling Manager, Captain Kenneth Githuku, was actively involved in the investigations, authored the Show Cause Letters and then sat in the disciplinary panel. The Court found that where an employer has systems in place, a different officer should have chaired the panel, leaving Githuku as a witness. Fusing accuser, investigator and judge breached natural justice and rendered the process unfair.
Whether the Respondent had valid and fair reasons for termination
The reasons were not valid: the Claimant was entitled to decline to operate the aircraft into Kisumu on safety grounds, and the termination flowed from a flawed process
On the first charge, the Court held that deference is owed to the captain's assessment of safety, weather and runway conditions, and he was entitled to decline the flight. On the second charge concerning sick reporting, the process overall was tainted by the biased panel. The Court thus found the termination unfair in the procedural sense and moved to remedies rather than upholding the dismissal.
Whether the conditional reinstatement justified denial of full lost salary
The Claimant who spurned the conditional reinstatement cannot be paid salary for the 5 years 9 months he declined to work
The Court viewed the reinstatement as the Respondent's rapprochement which should have led to negotiations on the return-to-work terms. Having declined to resume work, the Claimant could not claim the full 69 months' salary to retirement, though his age and diminished employment prospects justified retaining benefits.
Legal principles established
#- Where an employer's disciplinary rules provide for it, the accuser who investigated and authored the show cause letters must not sit in the disciplinary panel as judge of the same matter; doing so is an error of law the court will not pardon
- A flight captain is entitled to decline to operate an aircraft he does not consider safe, as passenger and crew safety is paramount, notwithstanding anticipated losses
- Where monetary compensation would be transient and eroded by economic vagaries, the Court may instead convert an unfair termination to an ordinary termination so the employee retains his benefits
Court orders
#- 1.The termination is reduced to a normal termination, meaning the Claimant retains his benefits
- 2.The Claimant is awarded the costs of the suit
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Employment and Labour Relations Court under the Employment Act and Article 162(2) of the Constitution (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbarire v Kenya Airways Limited (Cause 2399 of 2017) [2024] KEELRC 1228 (KLR)", Case Analysis (2024). Cause No 2399 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1228/eng@2024-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.