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ELRCPartially AllowedMemorandum of Claim dated October 5, 2017· [2024] KEELRC 2021 (KLR)

Kibore v National Oil Corporation of Kenya (Cause 1993 of 2017) [2024] KEELRC 2021 (KLR)

Employment and Labour Relations Court
29 July 2024
2,658 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled an employer must follow its own disciplinary rules, or a dismissal becomes unlawful, costing the employer a year's salary.

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 Respondent corporation, was dismissed on 3rd August 2017 following a disciplinary hearing before the Respondent's Human Resource Board Committee, stemming from internal memos issued by the Acting CEO concerning alleged failures of duty, including failure to ensure employees had job descriptions. She sought declarations that the termination was null and void, reinstatement, injunctions, and alternatively compensation. The Respondent defended the dismissal as gross misconduct under sections 44(3) and 44(4)(c) of the Employment Act and asserted that the disciplinary hearing and subsequent appeal complied with law and policy. The court found that the disciplinary procedure in clause 12.4 of the Respondent's HR Manual was not followed: routine memos were treated as show-cause letters, no investigation was carried out, the Claimant's case was not ratified by the Board, and the matter was not referred to the State Corporations Advisory Committee. The court held there was no substantive basis for the termination, characterising it as a fishing expedition driven by an Ag. CEO with a vendetta. Reinstatement being impractical after such a long delay and non-compliance with an interim order, the court awarded the maximum twelve months' salary under section 49 of the Employment Act (Kshs. 5,760,000), plus costs and interest. The Respondent filed no submissions.

Key legal issues

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01

Procedural fairness in disciplinary process

Holding

The termination was procedurally unfair because the Respondent did not follow the disciplinary procedure laid down in clause 12.4 of its HR Manual

Reasoning

The court examined clause 12.4 of the HR Manual, which prescribes investigation by a disciplinary committee, presentation of findings, and a structured hearing. It found these provisions were not followed: routine workplace memos were treated as show-cause letters, no investigation was undertaken, the case was not ratified by the Board as required for a person of the Claimant's position, and the matter was not forwarded to the State Corporations Advisory Committee. The omissions rendered the dismissal indefensible and unfair.

p. 5
02

Substantive justification for dismissal

Holding

There was no valid basis for the dismissal; the alleged failure to ensure job descriptions existed was not substantiated as misconduct attributable to the Claimant

Reasoning

The Claimant was dismissed for failing to perform her duties, notably failing to provide an employee with a job description. The court found the Respondent went on a 'fishing expedition' without investigating the accusations, and the Ag. CEO appeared to have a vendetta. The failure to involve SCAC suggested the dismissal could not be defended, reinforcing the absence of a substantiated ground for summary dismissal.

p. 5
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Appropriate remedy

Holding

Compensation equivalent to twelve months' gross salary (Kshs. 5,760,000) under section 49 of the Employment Act, in lieu of reinstatement

Reasoning

Reinstatement, though sought, was impractical given the time elapsed since dismissal in 2017 and the Respondent's disobedience of the interim order of 8th November 2017 restraining the filling of the position. The court characterised the dismissal as egregious and the Respondent's conduct as less than honourable, justifying the maximum award of twelve months' salary under section 49.

p. 5

Legal principles established

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  • Failure by an employer to follow its own disciplinary procedure renders a termination unfair and unlawful
  • Where reinstatement is no longer feasible, the remedy is compensation under section 49 of the Employment Act, up to a maximum of twelve months' gross salary for egregious conduct

Court orders

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  1. 1.A declaration that the termination of the Claimant's services was unfair and unlawful
  2. 2.12 month's salary as compensation – Kshs. 5,760,000/-
  3. 3.Costs of the suit
  4. 4.Interest at court rates on the compensation from the date of judgment till payment in full

Authorities

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Legislation

  • Employment Actsections 44(3), 44(4)(c), 49

Cases cited (2)

  • DK Njagi Marete v Teachers Service Commission
    [2020] eKLR
  • Kenya Broadcasting Corporation v Geoffrey Wakio
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, section 49 cited)

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, "Kibore v National Oil Corporation of Kenya (Cause 1993 of 2017) [2024] KEELRC 2021 (KLR)", Case Analysis (2024). Memorandum of Claim dated October 5, 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2021/eng@2024-07-29

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