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ELRCPartially AllowedMemorandum of Claim dated 05.11.2020 (number not stated in judgment)· [2024] KEELRC 1927 (KLR)

Njoroge v Kenya Railways Corporation & another (Cause E719 of 2020) [2024] KEELRC 1927 (KLR)

Employment and Labour Relations Court
26 July 2024
BOByram Ongaya
2,820 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled an employee's dismissal unfair because she was denied her chosen companion at a disciplinary hearing, awarding six months' salary.

What this practically means

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Executive summary

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The claimant, employed by the 1st respondent in November 2010 as Procurement Manager, sued over the termination of her employment on 12.11.2019 following a disciplinary process. She alleged a demotion through the 27.02.2018 offer of a five-year contract at Railway Grade 3, victimisation for prior whistleblowing, an unfair interdiction, substitution of interdiction with suspension, denial of adequate time and of the right to be accompanied by an expert of her choice at the disciplinary hearing, and termination without a fair hearing. She sought a declaration of unlawful termination, reinstatement, or alternatively Kshs.26,902,206.12, a certificate of service, severance and notice pay, and costs. The respondents denied demotion, asserted due process under the HR Policy, and maintained that terminal dues were correctly computed. The court held there was no demotion because the claimant voluntarily signed the translated fixed-term contract binding her at RG-3, collapsing the RG2-based claims. However, it found the disciplinary procedure unfair because clause 11.4.1 of the staff manual entitled her to attend with an expert of her choice, which was denied, so no hearing took place; the termination was unfair in procedure and substance contrary to sections 43 and 45 of the Employment Act, 2007. Weighing her contribution to the unfair termination and the unexpired fixed tenure, the court awarded six months' salary (Kshs.1,775,676.00 less PAYE), entered judgment against the 1st respondent, awarded the claimant costs of the suit, and recorded a consent on the certificate of service. Severance and unexpired-contract claims were declined.

Key legal issues

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01

Demotion

Holding

No demotion; the claimant voluntarily signed the 5-year contract placing her at RG-3.

Reasoning

The court found the claimant's terms were translated into a five-year contract by the letter dated 27.02.2018 and she accepted on 04.05.2018. Having voluntarily signed the contract, she was bound by it, and continued performing Head of Procurement duties at RG-3, so claims premised on the higher RG2 grade collapsed.

p. 5
02

Fairness of disciplinary process

Holding

The procedure was unfair; termination unfair in procedure and substance.

Reasoning

Clause 11.4.1 of the staff manual entitled the claimant to attend the hearing with an expert of her own choice. The respondent instead imposed attendance with a co-employee, her request for more time was denied, she could not attend the hearing, and her appeal was declined. Without a hearing, termination could not satisfy sections 43 and 45 of the Employment Act.

p. 5
03

Compensation

Holding

Six months' gross salary awarded at Kshs.295,946.00, totaling Kshs.1,775,676.00 less PAYE.

Reasoning

In exercising discretion under the Employment Act, the court considered the claimant's contribution to the unfair termination by failing to attend the board hearing where she could have voiced her objections, and also considered the unexpired tenure of the five-year fixed-term contract.

p. 5

Legal principles established

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  • A voluntarily signed fixed-term contract binds the parties and negates a claim of demotion where the employee accepted the translated terms.
  • Where an employee is denied the right to attend a disciplinary hearing with an expert of her own choice as provided in the staff manual, and the hearing does not proceed, the termination is unfair both in procedure and substance.

Court orders

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  1. 1.Payment of Kshs.1,775,676.00 payable less PAYE by 01.10.2024 failing interest at court rates from the date of judgment until full payment
  2. 2.The respondent to pay costs of the suit
  3. 3.Respondents to bear own costs of the suit
Jurisdiction invoked
First-instance jurisdiction of the Employment and Labour Relations Court under the Employment Act, 2007 (specific constitutional/statutory article not stated in judgment)

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, "Njoroge v Kenya Railways Corporation & another (Cause E719 of 2020) [2024] KEELRC 1927 (KLR)", Case Analysis (2024). Memorandum of Claim dated 05.11.2020 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1927/eng@2024-07-26

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