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ELRCDismissedCause No E957 of 2021· [2024] KEELRC 1935 (KLR)

Kajuju v Trustees of the Kenya Railways Staff Retirement Benefits Scheme (Cause E957 of 2021) [2024] KEELRC 1935 (KLR)

Employment and Labour Relations Court
18 July 2024
NMNzioki wa Makau
3,186 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld a dismissal backed by a fair hearing but blocked the employer's rent counterclaim because the same dispute was already before the Rent Tribunal.

What this practically means

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Executive summary

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The Claimant, formerly Head of Human Resource and Administration at the Kenya Railways Retirement Benefits Scheme, sued alleging she was unlawfully placed on indefinite compulsory leave on 29th October 2019 and subsequently unfairly terminated. She sought declarations of unfair dismissal and violation of constitutional rights, reinstatement, salary to her April 2028 retirement, leave pay, a certificate of service and costs, or in the alternative compensation under the Employment Act. The Respondent defended the dismissal as justified by rent arrears, poor performance and forgery allegations, asserting a fair disciplinary process, and counterclaimed for rent arrears on residential and commercial premises plus eviction. The Claimant rejoined that the counterclaim was sub judice before the Business Premises Rent Tribunal in Case No. 229 of 2020. The Court found the Claimant was afforded all benefits of a fair hearing under section 41 of the Employment Act, having received show-cause letters, opportunities to respond in writing and an in-person hearing before the Board where she admitted arrears exceeding Kshs 1.8 million. It held she brought the termination upon herself and dismissed the suit with costs. The claim for salary to retirement was refused as anticipatory salary is unavailable in law save in exceptional circumstances, the proper remedy being under section 49. The counterclaim was dismissed without costs as misplaced and sub judice, the rent disputes pending before the Rent Tribunal. Judgment was delivered at Nairobi on 18th July 2024 by Nzioki wa Makau, Judge.

Key legal issues

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01

Fairness of the dismissal for gross misconduct (rent arrears, forgery allegation, poor performance)

Holding

The dismissal was fair; the Claimant was given show-cause letters, written responses and a personal hearing before the Board, satisfying section 41 of the Employment Act

Reasoning

The Board minutes recorded that the Claimant was issued a show cause letter on 9th August 2019, interdicted on 23rd December 2019, issued another show cause letter on 6th February 2020 and was heard in person, admitting arrears exceeding Kshs 1.8 million. The Court found she had all the benefits of a fair hearing under section 41 and that her conduct caused her own dismissal. The suit was therefore unmerited.

p. 6
02

Claim for salary until retirement (anticipatory salary)

Holding

Refused; anticipatory salary is only grantable in exceptional circumstances and the proper recourse is section 49 compensation

Reasoning

The Court noted the Claimant sought gross salary from January 2020 to April 2028. It held the law provides no general basis for awarding future salary, citing Pravin Bowry v Ethics and Anti-Corruption Commission, and directed such claims to the section 49 compensation regime instead.

p. 5
03

Respondent's counterclaim for rent arrears and eviction

Holding

Counterclaim dismissed as sub judice, the same issues pending before the Business Premises Rent Tribunal in Case No. 229 of 2020

Reasoning

The Claimant pleaded, unrebutted by the Respondent, that the rent arrears claims were pending before the Business Premises Rent Tribunal. The Court accepted this and held the counterclaim misplaced, dismissing it without costs.

p. 5

Legal principles established

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  • Award of anticipatory salary to the end of a contract is not available in ordinary circumstances; the remedy for ignominy at an employer's hands lies under section 49 of the Employment Act
  • A counterclaim over matters pending before the Business Premises Rent Tribunal is sub judice and misplaced

Court orders

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  1. 1.The Claimant's suit is dismissed with costs
  2. 2.The Respondent's counterclaim is dismissed with no order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 41(1), 47, 50
  • Employment Actsections 10(5), 41, 43(1), 45, 47(5), 49, 51
  • Evidence Actsection 109

Cases cited (7)

  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Freddy Kipkorir Lang'at v Co-operative University of Kenya
    [2021] eKLR
  • Vijay Morjaria v Nansingh Madhusingh Darbar & another
    [2000] eKLR
  • Mutwol v Moi University
    (Civil Appeal 118 of 2019) [2022] KECA 537 (KLR) (28 April 2022)
  • Alvine Obuya Odima v One Acre Fund
    [2021] eKLR
  • David Mwangi Gioko and 51 others v Nairobi City Water & Sewerage Company Limited
    [2011] eKLR
  • Pravin Bowry v Ethics and Anti-Corruption Commission
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Constitution Article 41 claims (specific provision not stated in the 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, "Kajuju v Trustees of the Kenya Railways Staff Retirement Benefits Scheme (Cause E957 of 2021) [2024] KEELRC 1935 (KLR)", Case Analysis (2024). Cause No E957 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1935/eng@2024-07-18

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